BSJ [2022] QCAT 51

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BSJ [2022] QCAT 51 PARTIES: In an application about matters concerning BSJ APPLICATION NO/S: GAA6102-20 MATTER TYPE: Guardianship and administration matters for adults DELIVERED ON: 6 January 2022 HEARING DATE: 9 September 2021 HEARD AT: Brisbane DECISION OF: Member Ann Fitzpatrick ORDERS: THE ORDERS OF THE TRIBUNAL ARE: Declare that the transfer made by BSJ to ML of Lot 4 and Lot 5 on Registered Plan 19623 on 20 September 2018 was induced by the undue influence of ML. Declare that BSJ lacked capacity to make the decision to transfer to ML Lot 4 and Lot 5 on Registered Plan 19623 on 20 September 2018. THE TRIBUNAL DIRECTS THAT: The applicant BM file in the Tribunal two (2) copies and give to ML, BSJ and HM one (1) copy of submissions in relation to this Tribunal’s jurisdiction to make a Declaration as to a constructive trust and to order the transfer of Lot 4 and Lot 5 on Registered Plan 19623 to BSJ, the form of any such order, or any alternative order, by: 4:00pm on 20 January 2022. ML, BSJ and HM file in the Tribunal two (2) copies and give to the applicant BM one (1) copy of any submissions in reply, including any alternative form of order, by: 4:00pm on 3 February 2022. The parties must advise the Tribunal in writing if they require an oral hearing in relation to the question of jurisdiction and the form of any order by 4:00pm on 3 February 2022, otherwise the issues will be determined on the papers not before 3 February 2022. CATCHWORDS: EQUITY – UNDUE INFLUENCE AND DURESS – PRESUMPTION FROM RELATIONSHIP OF PARTIES – IN GENERAL – where elderly adult transferred his most -- 1 of 36 -- 2 substantial asset to his daughter – where daughter appointed attorney – whether presumption of undue influence rebutted – whether sufficient independent legal advice – status of granny flat agreement – declaration transfer as a result of undue influence GUARDIANS, COMMITTEE, ADMINISTRATORS, MANAGERS AND RECEIVERS – OTHER MATTERS – where presumption of capacity rebutted – where lack of appreciation of effect of decision to gift property – where decision to gift property affected by undue influence – declaration lack of capacity to make gift HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – interpretation of Powers of Attorney Act 1998 (Qld) – declaration property transferred by undue influence – interpretation of Guardianship and Administration Act 2000 (Qld) – declaration about capacity – whether Tribunal exercising judicial power or administrative power – whether declarations compatible with the adult’s human rights – right to recognition as a person before the law – property right – privacy right – right to fair hearing Guardianship and Administration Act 2000 (Qld), s 5, s 87, s 109A, s 110, s 118(1)(b), s 130, s 146, s 147, Schedule 4 Human Rights Act 2019 (Qld), s 4(b), s 4(f), s 5(2), s 8, s 10, s 13, s 15(1), s 24(1), s 25(1), s 58(1), s 58(2) Powers of Attorney Act 1998 (Qld), s 87, s 109A, s 110, s 118(1)(b) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28(3)(c), s 60, s 164 Social Security Act 1991 (Cth), s 12A, s 1118, s 1123 Adamson v Enever [2021] QSC 221 Anderson v Anderson [2013] QSC 8 Baker & Ors v Afoo & Ors [2014] QSC 46 Banks v Goodfellow (1870) LR 5 QB 549 Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129 Birch v Birch [2020] QCA 31 Briginshaw v Briginshaw (1938) 60 CLR 336 Brodie v Singleton Shire Council (2021) 206 CLR 512 Burns v Australian National University (1982) 61 FLR 76 Commercial Bank of Australia Ltd v Amadio (1982-83) 151 CLR 447 Crago v McIntyre [1976] 1 NSWLR 729 Frizzo v Frizzo [2011] QSC 107 Gibbon v Wright (1954) 91 CLR 423 Hamill v Wright and Ors [2018] QSC 197 Innes v Electoral Commission of Queensland [No2] [2020] QSC 293 Johnson v Buttress (1936) 56 CLR 113 -- 2 of 36 -- 3 Linderstam v Barnett (1915) 19 CLR 528 Michaletos v Stivactas [1992] ANZ ConvR 90 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48 Minogue v Thompson [2021] VSC 56 Momcilovic v R (2011) 245 CLR 1 Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273 PJB v Melbourne Health and State Trustees Ltd [2011] VSC 327 Powell v Powell [1900] 1 Ch 243 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] 123 CLR 361 Re Cram, ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140 Re Exeter (OS 1090- 1987) 9 March 1988 Re Kracke v Mental Health Review Board (2009) 29 VAR 1 Ruskey-Fleming v Cook [2013] QSC 142 Taylor v O’Beirne [2010] QCA 188 Watkins v Combes (1922) 30 CLR 180 APPEARANCES & REPRESENTATION: Adult: K Williams, Solicitor, ADA Law Applicant: Ray M, Solicitor, Craig Ray & Associates Current Attorney: Other Family member: Kluss, KJ, Barrister at Law Self-represented REASONS FOR DECISION [1] The parties participating in the hearing of this matter are de-identified. The parties are: (a) BSJ, the adult; (b) BM, the applicant and the adult son of BSJ; (c) ML, BSJ’s attorney and adult daughter; and (d) HM, BSJ’s other adult daughter. The Application [2] This is an application for a Declaration as to the capacity of BSJ to transfer real property owned by him to ML, on 20 September 2018.1 The application was filed on 23 March 2020. At the time of filing, the applicants were BM and HM, however 1 Guardianship and Administration Act 2000 (Qld) (‘the GAA’) s 146. -- 3 of 36 -- 4 later in the proceeding HM indicated that she no longer supports the application and withdrew as an applicant. [3] By Directions made 16 June 2021, BM was directed to provide a written statement which addressed the application of the presumption of undue influence pursuant to section 87 of the Powers of Attorney Act 1998 (Qld). The other parties were directed to provide a written statement in reply.2 The issue was canvassed at the hearing and submissions have been made by the parties in relation to the issue. [4] The Tribunal will determine the question of whether the presumption of undue influence has been rebutted, as part of its enquiry into the capacity of BSJ to transfer his property to ML on 20 September 2018, pursuant to BM’s application. Both questions arise out of the one set of facts and form part of the one matter. [5] As the parties are aware the Tribunal’s process is inquisitorial, not adversarial. Sequence of events [6] ML was made BSJ’s attorney for financial and personal/health matters, to commence immediately, pursuant to an Enduring Power of Attorney dated 10 December 2003.3 As at the date of the hearing, ML had not formally exercised any powers as attorney. [7] BSJ was, until 20 September 2018, the owner of Lot 4 and Lot 5 on Registered Plan 19623. The land is located at Paddington in Brisbane. A duplex is constructed on the site. I will refer to this as ‘the Property’. [8] Since 1986 BSJ has lived in one part of the Property, including with his wife during her lifetime and then as a widower. [9] ML and her husband have resided in the other part of the Property since 1987. As their four children were born, the whole family have resided at the Property. [10] ML and her husband paid the sum of $100.00 per week in rent from 1987 until 20 September 2018. From approximately June 2002, ML and her husband paid all utility bills, insurance premiums, costs for groceries and other shopping and medical bills, with her mother and father contributing $100 or $200 as they saw fit. BSJ paid rates until September 2018. [11] In 2004, BSJ had a “stroke”. Dr Manfield reports there were some expressive difficulties, but no receptive difficulties. [12] On 4 June 2017, BSJ’s wife passed away. [13] ML’s evidence is that on 2 September 2018, BSJ returned from lunch with BM noticeably upset. BM denies that anything other than a pleasant lunch with his father occurred on 2 September 2018. All members of the family gave evidence that there were no rifts in the family. I do not consider ML’s observation carries any weight. [14] ML says that on 2 September 2018 BSJ said to her: “I’m so glad I left the house to you in my Will”. [15] On the afternoon of 2 September 2018, BSJ told ML that he had decided to see a solicitor. 2 Ibid s 130 3 Exhibit 10. -- 4 of 36 -- 5 [16] On 10 September 2018, ML contacted the office of Watt & Severin at Paddington to enquire if a solicitor could assist BSJ in relation to his will. An appointment was made for 13 September 2018. Evidence of Dr Manfield [17] On 10 September 2018, ML took BSJ to see his longstanding general practitioner Dr Manfield. Dr Manfield assessed BSJ as having testamentary capacity. A Mini Mental State Examination (‘MMSE’) was conducted with a result of 26/30. Dr Manfield provided BSJ with a written certificate stating that in his professional opinion, BSJ possesses full testamentary capacity.4 [18] Dr Manfield recorded in his consultation notes of 10 September 2018:5 Presents in company with his daughter (ML) for assessment of testamentary capacity Wishes to alter some aspects of his will (BSJ) has been known to me for over ten years, so I am very familiar with his medical history From seeing him approximately monthly, I am also familiar with his mental state having had an opportunity to study it in a longitudinal fashion It is my initial clinical impression that he does have testamentary capacity On direct questioning, the patient was able to give a good account of what a will is for, and what it is meant to distribute & to whom. He was also able to state in what his estate contains & how it is to be administered after his death. Given MMSE to complete & score 26/30 i.e normal … Therefore, it is my professional opinion that (BSJ) today has testamentary capacity … Evidence of Ms Severin [19] ML took BSJ to an appointment with Ms Penelope Severin of Watt & Severin, Solicitors, on 13 September 2018. [20] Ms Severin and her firm had not acted for ML or BSJ previously. [21] Ms Severin’s evidence6 is that BSJ brought with him a letter from his doctor certifying as to his testamentary capacity and a copy of his last will made in 2006. [22] Ms Severin saw BSJ on his own, while ML waited outside. They discussed BSJ’s desire to review his will, that he wanted to be sure ML received the house in which they lived and that it could not be taken away from her. BSJ disclosed that ML was his attorney pursuant to an Enduring Power of Attorney. 4 Exhibit 9A and 9B. 5 Exhibit 9F. 6 Exhibit 1. -- 5 of 36 -- 6 [23] Ms Severin’s evidence is that BSJ did not want anyone to “fight (ML)” for the house because it was his desire to give the house to ML as it is her home, that he had been fair and generous to BM and HM giving examples and advising that both of them are comfortable financially. [24] Ms Severin advised BSJ as to the possibility of a claim by potential beneficiaries who feel they have been inadequately provided for or who feel there may have been undue influence when the will was made. [25] Ms Severin says that BSJ asked if he could transfer the house to ML now. Ms Severin advised BSJ as to how that could occur, including that ML purchase the Property, that a joint tenancy could be created or that the Property is entirely gifted to ML in her own right. [26] BSJ instructed Ms Severin that he would gift the house to ML and that ML would pay the stamp duty on the transfer. Ms Severin says that it was BSJ’s view that this was no different to what was in his will but this way he can give the Property to his daughter while he is alive. [27] Ms Severin: (a) advised BSJ to speak to Centrelink to determine if there were implications from the transfer for his pension. BSJ said that he did not care about that, that he was comfortable enough financially and that it would not cause any problems for him if he lost his pension. I note that there is no other evidence before the Tribunal as to BSJ’s assets and income. The fact that he was in receipt of a pension suggests that they were limited. Ms Severin advised BSJ to talk to Centrelink about how the transfer would impact upon his pension and whether there was any merit in a granny flat agreement which could provide him with security, document any agreement in relation to payment of rent and outgoings and possibly provide relief in terms of any adverse impact on his pension; (b) raised with BSJ that he consider the possibility that if the house is transferred to ML that she would then be the owner of the Property and could effectively do whatever she liked with the Property, without any consultation with BSJ, such as sell it, rent it out, renovate it, or kick him out. It was also explained that if he needed to sell the Property in order to fund his way into aged care that he would not be able to do so after transferring it to ML. Ms Severin says that BSJ chuckled and said that none of that is a concern to him at all. Ms Severin says that BSJ said that in his view it was ML’s house, and she could do what she likes with it. He said he was not concerned in any way that she will do anything untoward; (c) asked him how he saw things like rent, payment of bills etc working. BSJ said that he had not really thought about it but if ML owned the house, then she would be responsible for payment of the rates and water rates. As for rent, it would be something to discuss with ML; (d) explained that because ML is BSJ’s attorney the law automatically presumes that she is influencing BSJ to transfer the Property to her. BSJ told Ms Severin that this has nothing to do with ML or the others and it is his decision, and he wants ML to get the house because it is her home. He said he has provided for the others fairly and generously and he wants ML to have the house. He said it -- 6 of 36 -- 7 is in his will but if that is not a sure thing, then he wants to do it now while he is alive. [28] Ms Severin sets out in her statement7 that BSJ spoke to her clearly, concisely and freely. He was coherent, jovial and animated. He spoke very well of his family. He was able to provide answers to all questions Ms Severin asked. She did not at any stage question his capacity nor did she feel BSJ was under any undue influence from anyone. [29] At the hearing Ms Severin said that BSJ was aware that he was giving away basically all his assets. [30] After the consultation with BSJ, Ms Severin met immediately afterwards with both ML and BSJ to discuss the proposed transfer. Ms Severin made it clear that she was only acting for BSJ in the transaction. ML did not engage a lawyer in the transaction. Steps taken by ML prior to the transfer [31] At the meeting with Ms Severin, ML agreed to obtain a valuation and to pay any stamp duty on the transfer. [32] Subsequently, ML and BSJ discussed the transfer. ML says BSJ said that is what he had decided and wanted to do. [33] ML obtained an appraisal of the Property from a real estate agent, in a range of $950,000.00 - $1,100,000.00. ML does not disclose the value of the Property in her statement. That evidence was given at the hearing. ML’s evidence at the hearing was that she showed BSJ the valuation but could not remember if BSJ was surprised by the value. [34] ML and BSJ spoke to Centrelink about a granny flat agreement, and they agreed to put this in place. At the hearing ML said, in the context of the discussion about a granny flat agreement, that BSJ was worried someone would take him away and that she wanted BSJ to know that he could stay in his home for the rest of his life. In response to a question at the hearing, ML said that other than speaking to financial advisers at Centrelink and Ms Severin, neither she nor BSJ obtained independent legal or financial advice in relation to the granny flat agreement. [35] On 20 September 2018, ML and BSJ attended on Ms Severin to execute transfer documents recording a transfer of Lot 4 and Lot 5 of RP 19623 from BSJ to ML. The consideration is expressed as: “For the natural love and affection borne by the transferor to the transferee.” [36] On 17 November 2018, BSJ and ML signed a handwritten “granny flat agreement”8 prepared by ML. Events after the transfer [37] BSJ continues to reside at the Property. ML and her husband meet all expenses. 7 Exhibit 1 paragraph r xii. 8 Attachment to Exhibit 7. -- 7 of 36 -- 8 [38] On 11 September 2019, in response to a question from BM to ML as to whether BSJ had a will, ML told BM that BSJ has a will and that she is being left the Property with the cash remainder to be divided between herself, BM and HM.9 [39] The transfer was not disclosed to BM or HM until a Property search was undertaken by a solicitor in late 2019. [40] On 30 April 2020, Dr Manfield assessed BSJ as having capacity for both simple and complex matters. [41] On 3 December 2020, BSJ attended on Dr Mansfield for an assessment of his capacity to make decisions and testamentary capacity. A deterioration was noted and a MMSE resulted in a score of 6/30. [42] On 5 March 2021, Dr Manfield provided a Health Professional Report to the Tribunal concluding that as at 3 December 2020 BSJ had no capacity for decision making in relation to his financial affairs. The Doctor noted that BSJ became agitated when the proceedings in the Tribunal were mentioned to him. [43] Also relevant to that time period is a list of BSJ’s medical conditions from 1987 to February 2021 prepared by Dr Manfield and filed in the Tribunal with other documents on 3 June 2021.10 I note in particular the following entry: Feb’19 Dr Paul Martin (Cardiologist RBWH): (BSJ) came back to the clinic today on his 91 st birthday and it is extraordinary really to think that he is still alive and kicking given all he has been through with his ischaemic cardiomyopathy, VT’s, ICD, VT ablations, stroke, chronic kidney disease, paroxysmal AF, first degree AV block, right bundle branch block but he gets out to the Broncos Club three times a week and he still feeds the possums and honeyeaters and showers himself. [44] On 23 March 2020, BM and HM filed an application for a declaration about capacity seeking to restore the Property to BSJ’s assets. Human Rights [45] In making this decision I have given consideration to the terms of the Human Rights Act 2019 (Qld) (‘the HRA’) and the human rights set out in the Act. [46] BSJ’s human rights relevant to this decision include the right to recognition as a person before the law;11 the right to a fair hearing;12 and the right to own property alone or in association with others,13which taking a broad interpretation14 of that right includes a right to dispose of property as an incident of ownership, and a right not to have his privacy, home or correspondence arbitrarily interfered with.15 [47] Under the HRA, the Tribunal must: 9 Exhibit 4 paragraph 3. See the Statement of BM. 10 Exhibit 9B. 11 Human Rights Act 2019 (Qld) (‘the HRA’) s 15(1). 12 Ibid s 31. 13 Ibid s 24(1). 14 Minister Administering the Crown Lands Act v NSW Aboriginal Land Council [2008] HCA 48, [3]- [4]. 15 The HRA s 25(1). -- 8 of 36 -- 9 (a) interpret statutory provisions to the extent possible, consistent with their purpose, in a way that is compatible with human rights;16 (b) to the extent that the Tribunal is performing a function of a public nature17 and acting in an administrative capacity, act and make decisions in a way compatible18 with human rights, and must in making a decision, give proper consideration to a human right relevant to the decision.19 [48] Further, by s 5(2), the HRA applies to the Tribunal, in the exercise of its functions under Part 2 (human rights), and Part 3, division 3 (interpretation of laws).20 Presumption of Capacity and Presumption of Undue Influence [49] Three rebuttable presumptions apply on the facts of this matter – the presumption of capacity, the presumption of undue influence and the presumption of advancement. The latter presumption has not been raised by ML in support of her position and I have not addressed the issue. Presumption of capacity to transfer Property inter vivos [50] BSJ is presumed to have capacity to transfer the Property at the relevant date.21 The presumption is a rebuttable presumption. The onus of proving that an incapacity existed rests with the party seeking to set aside a transaction made while a person was under an alleged incapacity.22 [51] Capacity is defined in Schedule 4 of the Guardianship and Administration Act 2000 (Qld) (‘the GAA’), as: Capacity, for a person for a matter, means the person is capable of – (a) understanding the nature and effect of decisions about the matter; and (b) freely and voluntarily making decisions about the matter; and (c) communicating the decisions in some way. [52] ML’s submissions are that the nature of capacity required to validly undertake legal acts depends on the character of the legal act in question.23 I accept that submission. [53] The question in this matter is whether the presumption that BSJ had capacity to make a gift inter vivos when he transferred the Property to ML on 20 September 2018 has been rebutted. [54] In considering the definition of capacity, particularly the first two limbs, it is relevant to consider the scope of each limb. 16 The HRA s 4(f), s 48. 17 Ibid s 10. 18 Ibid s 8, s 13. 19 Ibid s 4(b), s 58(1), s 58(5). 20 Ibid s 5(2). 21 Guardianship and Administration Act 2000 (Qld), s 5. 22 Anderson v Anderson [2013] QSC 8, [45]. 23 Crago v McIntyre [1976] 1 NSWLR 729 at 739.1; Hamill v Wright and Ors [2018] QSC 197, [155] – [162]; Adamson v Enever [2021] QSC 221, [6]. -- 9 of 36 -- 10 [55] Many gifts are minor and do not have serious ramifications. At that end of the spectrum is a capacity to understand the nature of a transaction when it is explained.24 [56] In the case of a gift which comprises the bulk of a donor’s estate and which pre- empts the terms of the donor’s will, the test of capacity is that required to make a will or other testamentary disposition.25 [57] Holland J considered the requisite mental capacity to make a voluntary transfer of property inter vivos in Crago v McIntyre:26 The positions of a settlor and testator are not, of course, identical. In the case of a testator the law has no concern to look after the donor’s own interests because he is dead, but equity has always shown some concern for the interests of a person who makes a voluntary settlement of his own Property inter vivos. Maybe this is because the trusts created by such a settlement are enforceable only in equity, and this has given the equity courts, as courts of good conscience, an opportunity to apply to such settlements, general concepts of fairness and protection of the weak, particularly when they are for some reason disabled from exercising a proper judgment of their own interests. No question of depriving another party of the benefits of a fair and proper bargain for which he has given consideration arises on a voluntary settlement, but such a settlement may put a settlor in a position in which he has failed to do justice, not only to himself, but also to those who may become dependent upon him, or to whom he might owe or acquire a moral duty to provide. For these reasons I think that there should be applied to the case of a voluntary settlement the same test of mental capacity as is applied to the creation of a testamentary trust. [58] The modern test for testamentary capacity, adapted from the decision of Banks v Goodfellow27 may be expressed as: (a) an appreciation of the significance of the legal act which the person is about to undertake; (b) an awareness at least in general terms of the nature, extent and value of the estate which may be disposed of; (c) an awareness of those who may reasonably be thought to have a claim upon the testamentary bounty, and the basis for, and the nature of, the claims of such persons; and (d) the ability to evaluate and discriminate between the respective strengths of the claims of such persons.28 [59] In this case, BSJ has transferred his home being his most significant asset to ML. That transfer was apparently undertaken to avoid a challenge to his will by other members of his family and obviously has an impact on the claims which his family 24 Gibbons v Wright (1954) 91 CLR 423, 437 – 438 (emphasis added). 25 Queensland Handbook for Practitioners on Legal Capacity, Queensland law Society dated 1 July 2014, Schedule 2, paragraphs 1 and 2. 26 [1976] 1 NSWLR 729 at 741. 27 (1870) LR 5 QB 549, 565. 28 Frizzo v Frizzo [2011] QSC 107, [20]-[24]; affirmed [2011] QCA 308; Ruskey-Fleming v Cook [2013] QSC 142, [57]-[60]. -- 10 of 36 -- 11 might properly make on his estate. Shortly after the transfer was effected, BSJ entered into a granny flat agreement. The transfer and the granny flat agreement may affect BSJ’s pension. His accommodation options and the type of nursing home care available to him are affected. [60] To arrive at a conclusion as to whether the presumption of capacity has been rebutted and that BSJ did not have an understanding of the nature and effect of his decision to transfer the Property inter vivos, it is appropriate to apply the modern test of testamentary capacity. [61] As well as an understanding of the nature and effect of his decision, BSJ must be able to freely and voluntarily make the decision to transfer his Property. That question buts up against the presumption of undue influence present in this case. [62] In considering the definition of capacity in the GAA and in particular the meaning and scope of the statutory limbs, I note that the GAA arises from the common law and should be interpreted as part of a coherent body of law.29 That is the basis on which the test of testamentary capacity is relevant to meaning of –“ understanding the nature and effect” of a matter, and how the law as to a presumption of undue influence applies to BSJ’s ability to freely and voluntarily make a decision about a matter. [63] Beyond that, section 48 of the HRA requires that all statutory provisions must be interpreted in a way that is compatible with human rights, to the extent that it is possible to do so, consistent with the provision. The section applies when different constructions are open on the language of the provision being interpreted, having regard to the purpose of the provision.30 [64] In this case, there is no ambiguity in the definition of capacity in the GAA. The definition works with many provisions of the GAA. The GAA is consistent with the purpose of the HRA. The relevant question here is not one of statutory interpretation, but rather whether the decision made applying the definition of capacity is one which is compatible with BSJ’s human rights. Presumption of undue influence [65] Section 87 of the Powers of Attorney Act 1998 (Qld) provides: 87 Presumption of undue influence The fact that a transaction is between a principal and 1 or more of the following– (a) an attorney under an enduring power of attorney … gives rise to a presumption in the principal’s favour that the principal was induced to enter the transaction by the attorney’s undue influence. [66] The Queensland Court of Appeal in Birch v Birch31 sets out the relevant principles, including statements by Dixon J in Johnson v Buttress32 that the onus lies on the party in the position of influence to prove that: 29 Brodie v Singleton Sire Council (2021) 206 CLR 512, [31]. 30 Momcilovic v R (2011) 245 CLR 1 at [49]-[50] per French CJ, 92-93 [169]-[171] per Gummow J, 217 [565]-[566] per Crennan and Kiefel JJ, and 250 [684] per Bell J. 31 [2020] QCA 31. 32 (1936) 56 CLR 113, 134. -- 11 of 36 -- 12 [H]e took no advantage of the donor, but that the gift was the independent and well-understood act of a man in a position to exercise a free judgment based on information as full as that of the donee. Dixon J continued: This burden is imposed upon one of the parties to certain well-known relations as soon as it appears that the relation existed and that he has obtained a substantial benefit from the other. A solicitor must thus justify the receipt of such a benefit from his client, a physician from his patient, a parent from his child, a guardian from his ward, and a man from the woman he has engaged to marry. The facts which must be proved in order to satisfy the court that the donor was freed from influence are, perhaps, not always the same in these different relationships, for the influence which grows out of them varies in kind and degree. But while in these and perhaps one or two other relationships their very nature imports influence, the doctrine which throws upon the recipient the burden of justifying the transaction is confined to no fixed category. It rests upon a principle. It applies whenever one party occupies or assumes towards another a position naturally involving an ascendancy or influence over that other, or a dependence or trust on his part. One occupying such a position falls under a duty in which fiduciary characteristics may be seen. It is his duty to use his position of influence in the interest of no one but the man who is governed by his judgment, gives him his dependence and entrusts him with his welfare. When he takes from that man a substantial gift of property, it is incumbent upon him to show that it cannot be ascribed to the inequality between them which must arise from his special position. He may be taken to possess a peculiar knowledge not only of the disposition itself but of the circumstances which should affect its validity; he has chosen to accept a benefit which may well proceed from an abuse of the authority conceded to him, or the confidence reposed in him; and the relations between him and the donor are so close as to make it difficult to disentangle the inducements which led to the transaction. [67] This is not a case where actual undue influence is asserted against ML in the sense of intimidation, pressure or influence which must be established by the person asserting actual undue influence. Presumed undue influence under section 87 of the Powers of Attorney Act 1998 (Qld) (‘the POA’) and in equity, arises once the relevant relationship of trust and confidence is established.33 [68] I find that s87 of the POA is engaged on the facts of this matter because BSJ appointed ML for financial matters with powers commencing immediately and BSJ accepted her appointment as attorney under the enduring power of attorney. In Smith v Glegg34 McMurdo J observed that in his view s87 is engaged where the transaction is between the principal and the attorney, whether or not the transaction was effected by the exercise of the powers under the enduring power of attorney. I respectfully adopt that reasoning. [69] ML, as BSJ’s attorney bears the onus of rebutting the presumption and proving that the transfer was voluntary and the result of a free exercise of will or a well understood decision making process. 33 Smith v Glegg [2004] QSC 443, [39]. 34 Ibid., [40]. -- 12 of 36 -- 13 [70] The standard of proof is the civil standard on the balance of probabilities. The approach in Briginshaw v Briginshaw35 is apposite: … But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. [71] I do not consider section 48 of the HRA has any work to do in interpreting section 87 of the POA. The section arises from equitable principles and is interpreted as part of that body of law. The words of the section are not ambiguous. The provision is consistent with the purpose of the HRA. Has ML rebutted the presumption of undue influence? [72] I will determine this question first. If there is a finding the presumption has not been rebutted, that will influence a finding in relation to BSJ’s capacity to gift the Property to ML. [73] ML submits36 that the evidence before the Tribunal supports the conclusion that the transfer was not procured by ML’s undue influence over BSJ, because: (a) the Property transfer gave effect to BSJ’s long-held intention to gift the Property to ML; (b) BSJ received independent advice from a solicitor and from Centrelink in relation to the Property transfer and the granny flat agreement; (c) the granny flat agreement protects BSJ’s interests in the Property, notwithstanding that BSJ did not consider a need to do so, but followed the advice of his lawyer and Centrelink; (d) ML has cared for and supported BSJ for more than 34 years and remains committed to doing so until his death; (e) although BSJ did not receive independent financial advice, and even if the Tribunal finds that independent legal advice he received may not have contained all of the advice which would or might have been relevant to his decision to transfer the Property and enter into the granny flat agreement, the transactions should nevertheless be upheld on the basis the evidence demonstrates that BSJ held a long term intention to gift the Property to ML and was able to make his own decisions about whether and how the transaction might affect his interests. Like in Birch’s case, even if BSJ had received independent financial advice to the effect that it was against his interests to effect the transfer, he would have, more likely than not, proceeded with the transfer given his long-term intention 35 (1938) 60 CLR 336, 362. 36 Reply submissions on behalf of ML dated 30 September 2021. -- 13 of 36 -- 14 to do so and the reasons for the transfer, being to protect the asset from challenge on his death. Did BSJ have a long-held intention to gift the Property to ML? [74] In Birch’s case it was found that the adult had a long-held intention to transfer property to one of her sons and that her affection and gratitude to her son for developing and operating her share of a rural property were factors which went to the successful rebuttal of a presumption of undue influence present in that case. Other factors held to be rational reasons for the transfer included the adult’s desire to avoid a challenge to her will, a desire to give her son a means of paying out the other children for his late father’s interest in the property and the fact that the transfer was not improvident. These factors also put into context the legal advice received with respect to the transfer. [75] The facts of Birch’s case are very different to the facts before me. In Birch’s case there was extensive evidence of the adult’s long-held intention to transfer the property in question to her son. The evidence involved mutual wills made by the adult and her husband going back many years before the transfer and letters written to the other children explaining the reasons why they wished one of the sons to receive the property. [76] In this case it appears that BSJ intended to leave the Property to ML in his most recent will and that he wished to avoid a challenge to his will by other members of the family. A copy of the will is not in evidence, although Ms Severin sighted a will from 2006. There is evidence that three of BSJ’s wills were transferred from the safe custody of one firm of solicitors to Watt & Severin. It is possible that those wills reflect a different intention. Those wills are not in evidence. [77] ML’s statements forming her evidence in chief do not set out any basis for an assertion that it was BSJ’s long held intention to gift the Property to her. [78] ML asserted in evidence at the hearing that it was her mother and father’s intention to transfer the Property to her despite the difference in what other members of the family would receive from the estate. ML said that was because they have supported each other and because it is her family home. [79] It is not clear on the evidence if BSJ’s late wife was a registered proprietor of the Property. As she died intestate, there is no evidence of mutual wills or other written communications which reflect her intentions in relation to the Property. [80] When asked at the hearing how she knew that her mother wanted her to have the home, ML said that it is one property, they live in it together and that her mother mentioned it “broadly”. [81] ML’s evidence as to her knowledge of her father’s intentions with respect to the Property is that: (a) BSJ said to her on 2 September 2018: “I’m so glad I left the house to you in my Will”. ML says that was the only time she had a discussion with her father about his will;37 and 37 Exhibit 7 paragraph 5(b), (e). -- 14 of 36 -- 15 (b) in the context of the first visit to Ms Severin: There had not been any prior discussion between Pop and me about transferring the house to me. It was not something which I had raised or requested and was not something I would ever have raised or requested.38 [82] That evidence is at odds with ML’s response to a question at the hearing when she was asked how she knew that her father wanted her to have the home. ML said that BSJ had spoken openly to her and to her sister HM about it. [83] ML said that she had “no idea” if BSJ had spoken to BM about his intention. [84] I am not satisfied on ML’s evidence that BSJ had a long-held intention to gift the Property to her during his lifetime. [85] In her evidence HM said that she had a lengthy conversation with her father in approximately June 2020 when BSJ explained to her that he and his wife had always intended for the house to go to ML and that he had decided in 2018 to transfer the house now to ML rather than wait until he died.39 HM says that she fully accepted her father’s explanation and that it was clear he had done what he had decided to do. [86] HM confirms in her statement that she had known for a long time that her mother and father intended the house to go to ML and that it was not a recent decision by BSJ.40 [87] When questioned as to any discussions about BSJ’s will or about gifting the Property to ML, HM said that the discussions occurred at family get togethers over time. She could not be more specific. She could not say if BM would have heard these discussions. [88] HM’s evidence was vague as to any discussion of BSJ’s intentions with respect to the Property which may have been made over the years. I do not consider HM’s evidence on this point is a reliable basis on which to conclude that BSJ had a long- held intention to gift the Property to ML. [89] BM’s evidence is that he was unaware of any long-held intention on the part of his mother or father that the Property was to be given to ML. He says that HM never told him this was the case.41 [90] Ms Severin acted on behalf of both ML and BSJ in the early stages of this proceeding. Ms Severin wrote a letter to BM and HM dated 27 August 2020 on BSJ’s instructions. The letter says: We are instructed to put you on notice that it has always been our client’s intention to give (the Property) to (ML). Our client also requests that we assure you that our client knew exactly what he was doing, that he wanted to Transfer the Property to his daughter (ML) and that if he did not do it during his lifetime, it was always his intention to do so in his will.42 38 Ibid paragraph 5(k). 39 Exhibit 8 paragraph 8. 40 Ibid paragraph11. 41 Exhibit 4 paragraphs 18 and 19. 42 Exhibit 6A. -- 15 of 36 -- 16 [91] Ms Severin filed in the Tribunal on 27 August 2020 a short statement from BSJ43 providing comments in relation to ML’s application to strike out BM’s application for a declaration as to capacity. In the statement, BSJ says that it has for a very long time been his intention that ML will receive the Property. [92] BSJ did not give evidence at the hearing. He was represented by a separate representative,44 Ms Williams, principal solicitor, ADA law. Ms Williams visited BSJ and provided a report to the Tribunal dated 10 May 2021. The report does not expressly refer to a long-held intention to transfer the Property to ML. [93] The report relayed BSJ’s comments to Ms Williams that he was aware his daughter, ML has “full rights” to the Property and that he paid for this. He is reported to have said that he paid for the Property and should be free to do with the Property what he wants. Other comments include that: his daughter looks after him and he is very happy; that she makes decisions now; that his son wants a piece of the Property, but also that his son “got Property”; and that he has a special relationship with ML. [94] BSJ was 90 years of age at the date of the transaction. He is now 93 years of age. [95] Upon enquiry at the hearing, Ms Severin said that when she saw BSJ in August 2020 he presented differently. His health had declined, and her observation was that he was not as sharp as when she first met him. Ms Severin described him as stressed, but she was not concerned that he lacked the capacity to talk to her. [96] Ms Severin’s evidence as to her discussion with BSJ on her first consultation with him does not reveal BSJ saying that he had a long-held intention to transfer the Property to ML during his lifetime. However, she did see his will made in 2006 and advised BSJ that the will effected his desire to see his daughter receive the Property. [97] I consider that Ms Severin’s evidence as to the content of the 2006 will is evidence of an intention on the part of BSJ from the date of the will in 2006 to leave the Property to ML in his will. That is different to a long-held intention to transfer the Property as a gift during his lifetime. I find that the letter from BSJ to BM and HM and the statement filed in the Tribunal are consistent with a desire to leave the Property to ML in his will. [98] I am unable to find on the evidence that BSJ had a long-held intention to transfer the property as a gift to ML during his lifetime. I find that the intention to transfer the Property to ML during his lifetime was a decision made one week before the transfer, when it was suggested to BSJ by Ms Severin as one of the options available to him. Did BSJ receive independent advice from a solicitor in relation to the transfer and the granny flat agreement? [99] Receipt of independent legal advice is one means of rebutting the presumption of undue influence. [100] The Queensland Court of Appeal in Birch’s case cites with approval the requirements for independent advice set out in Powell v Powell:45 43 Exhibit 6A. 44 The GAA s 125. 45 [1900] 1 Ch 243, 247. -- 16 of 36 -- 17 [The duty of a solicitor] is to protect the donor against himself, and not merely against the personal influence of the donee, in the particular transaction…the solicitor does not discharge his duty by satisfying himself simply that the donor understands and wishes to carry out the particular transaction. He must also satisfy himself that the gift is one that it is right and proper for the donor to make under all the circumstances; and if he is not so satisfied, his duty is to advise his client not to go on with the transaction, and to refuse to act further for him if he persists. and in Michaletos v Stivactas:46 A person in the plaintiff’s position at that time should have been asked what was the extent of her Property and the question of her future care and maintenance should have been discussed and the adviser should have pointed out to her the possible disadvantages of divesting herself of her major assets and relying completely on the defendant.” [101] I am satisfied that Ms Severin was an independent solicitor and that she had no prior association with ML or BSJ. I do not place any weight on BM’s argument that Ms Severin’s independence was compromised because ML made the appointment with Ms Severin and because ML took BSJ to the Doctor to obtain a certificate of testamentary capacity to take with him to the interview. [102] I am satisfied on Ms Severin’s evidence that she gave BSJ comprehensive oral advice in relation to his choice to transfer the Property to ML now, rather than have it pass by his will. I am satisfied that she explained the possible disadvantages of BSJ divesting himself of his major asset. [103] Ms Severin’s evidence is that she did not at any stage question BSJ’s capacity nor did she feel that BSJ was under any undue influence from anyone. That opinion is not determinative of the question. [104] Despite these findings, I am not satisfied that Ms Severin acted to protect BSJ from himself nor that the transaction was right and proper and that Ms Severin was so satisfied. In particular, Ms Severin gave no written advice which may have allowed some reflection upon the risks associated with the proposed transfer. [105] Ms Severin’s evidence, upon being asked if in her view it was right and proper to make the transfer, was equivocal. Ms Severin first answered that she did think the gift was right and proper. Upon being pressed, Ms Severin said that it was what her client wanted and that she was comfortable to act on his instructions. I am not satisfied that Ms Severin thought the transaction was right and proper. [106] In relation to Ms Severin’s obligation to protect BSJ from himself, I consider that the transfer was improvident because it gave away his most significant asset, leaving him vulnerable in the event of any of the vicissitudes of life such as a falling out with ML, ML’s death or divorce or most probably given BSJ’s age, the need for a higher degree of care than ML could provide. [107] Ms Severin was aware of a range of risks to BSJ and raised them with him. However, given what was at stake, I do not consider Ms Severin dealt with the risks in a way which truly protected BSJ from himself. 46 [1992] ANZ ConvR 90. -- 17 of 36 -- 18 [108] Ms Severin did not put her advice in writing. That step would have allowed BSJ an opportunity to consider what was a lot of information given in the meeting, and to reflect on a safer option. [109] Ms Severin did not recommend she review or draft a granny flat agreement before the transfer was effected. That step would have ensured any granny flat agreement secured BSJ’s interest in the Property for the balance of his life. A legally drafted agreement would minimise the risk that BSJ may have to pursue equitable relief in the event that the family’s circumstances change, and he can no longer live at the Property. Without a legally drafted agreement securing his right to live in the Property, I do not consider BSJ had the benefit of meaningful independent advice in the face of such an improvident transfer. [110] Ms Severin may not have known BSJ’s fears, in the face of the bravado he displayed in his interview with her – claiming not to care about the risks raised with him. The evidence of ML is that he was concerned he would be forced to leave his home. ML said at the hearing, that in her discussion with BSJ about the granny flat agreement, they discussed that he would stay in his home. As noted earlier, ML’s evidence is that BSJ was “always worried someone would take him away” and that she wanted him to know that he could stay in his home for the rest of his life. [111] Even without knowing of BSJ’s fears, Ms Severin should have been aware of extensive case law involving elderly people giving away their property to a member of the family, expecting to continue to have a home and to be cared for, only to find that circumstances change, and they no longer have a home of their own, or any significant assets to deal with the set back. [112] BSJ raised his fear with ML. Instead of ensuring an appropriate legal document was in place, before the transfer was effected, ML herself drafted an agreement two months later which she intended would assuage BSJ’s fears. The agreement has many shortcomings, which I will consider later in the decision. [113] Ms Severin was aware that a gift in favour of ML would engage the presumption of undue influence. Ms Severin did not recommend that ML take advice as to her own obligations in the circumstances. That may have ensured a more considered and safe process for BSJ. As it transpired, ML appears to have ignored her fiduciary obligation as BSJ’s attorney to manage his affairs for his benefit, not her own benefit.47 ML actively engaged in ensuring the transfer in her favour was effected within the space of a week, by arranging a valuation and paying the stamp duty. Two months later ML drafted the granny flat agreement purporting to set out BSJ’s rights. [114] Ms Severin knew ML was BSJ’s attorney and knew of the involvement of ML in the transfer arrangements. That was all the more reason for Ms Severin to ensure BSJ’s interests were protected and not left exposed to changed circumstances. [115] In the end, I find that although some independent legal advice was given to BSJ, the advice did not go far enough to protect BSJ, as should have been the case, where the transfer was obviously improvident and where there was a presumption of undue influence at play. [116] Independent advice is important; however the authorities make it clear that it is one matter to be taken into account in the whole of the circumstances relevant to the 47 Smith v Glegg [2004] QSC 443, [61]-[62]. -- 18 of 36 -- 19 issue of whether ML has rebutted the presumption that BSJ did not thoroughly comprehend and deliberately of his own free will carry out the transaction.48 Does the granny flat agreement protect BSJ’s interests? [117] The terms of the document, said to be a granny flat agreement, dated 17 November 2018 are: I (BSJ) have entered into a granny flat agreement with my daughter (ML). I understand that I will reside here at (the address in Paddington) for the remainder of my life. I know that I will have a life interest at the residence and will be looked after by (ML) and her family. I will not be responsible for any building or land operating expenses or general household or medical bills. [118] The first point is that the document does not refer to the preceding transfer. It is not possible to say by reference to the document what role, if any, the transfer had in BSJ’s record of what he thinks is his entitlement to live at the Property. [119] The document is written in the first person, setting out BSJ’s understanding, rather than in terms of an agreement between two parties to the agreement. BSJ says “I understand that I will reside here …” for the “remainder of my life”. No basis for that understanding is given. The wording suggests BSJ has a mere right to reside at the Property. In contrast, the document also records that BSJ “knows” that he will have a “life interest” at the residence. No basis for that knowledge is given. No definition of life interest is given. There is no suggestion in the document that BSJ has an interest which would enable him to place a caveat on the land or to deal with it in any way he might desire during his lifetime and which might provide him with some security. [120] The document says that BSJ “knows” he will be looked after by ML and her family. How he knows and what “looked after” means are not expressed. [121] The document contains no promise from ML that she will provide any care or security of accommodation to BSJ over his lifetime. The document is signed by both BSJ and ML. I do not infer from her signature that ML is making any promise to provide BSJ with a right to reside, a life interest or the care he may need. The most likely explanation is that ML witnessed BSJ’s signature. [122] The result is that if the relationship changes so that BSJ is no longer able to live at the Property, for example because his care needs are too high to be safely provided at home, or because the relationship has broken down between BSJ and ML, BSJ will have to navigate a range of complex legal issues traversing contract, equity, trusts and contrary legal presumptions, if he seeks to recover his Property or compensation for failure of an agreement with his daughter.49 [123] I find that the so-called granny flat agreement offers very little, if any, legal protection to BSJ in the event that he can no longer live at the Property. 48 Linderstam v Barnett (1915) 19 CLR 528, 531. 49 Australian Law Reform Commission, Elder Abuse – A National Legal Response (ALRC Report 131), 6.30, citing Eileen Webb and Teresa Somes, ‘What Role for the Law in Regulating Older Persons’ Property and Financial Arrangements with Adult Children? The Case of Family Accommodation Arrangements in Australia’ in Ralph Ruebner, Teresa Do and Ann Taylor (eds), International and Comparative Law on the Rights of Older Persons (Vandeplas Publishing, 2015), 333. -- 19 of 36 -- 20 [124] ML’s evidence is that the granny flat agreement was drafted to contain the terms advised by Centrelink’s financial advisers as to the contents of the agreement so that BSJ’s pension would not be affected by the gifting rules.50 [125] There is no evidence that the document was acceptable to Centrelink and whether BSJ’s pension was affected by the transfer. [126] Upon conducting an internet search of Services Australia in relation to granny flat interests, I note the Australian Government website provides recommendations to the public.51 It recommends obtaining financial and legal advice before a granny flat interest is created. The website advises that a granny flat interest is created when a person exchanges assets, money or both for a right to live in someone’s property for life. There are two ways to have a granny flat interest, either: (a) a life tenancy – the right to live in the property, or (b) a life interest – the right to use and benefit from the property as the person wishes. [127] The Australian Government website goes further to recommend that a legal document is drawn up so there is proof of what has been agreed to. It is said that the document should: (a) confirm a person’s right to live in the home for life; (b) say if the person has agreed to pay rent or look after any upkeep of the Property; and (c) say how the owner will compensate the person if they want them to give up their granny flat interest. [128] The record of BSJ’s understanding, purporting to be a granny flat agreement, falls short of the basic recommendations given by the Australian Government to the public on its website. [129] BM in his closing submissions points out that the granny flat agreement does not refer to the transfer of BSJ’s Property and that no consideration flowing from BSJ to ML is expressed in the agreement for what BSJ expects to receive under the agreement. BM submits that one can infer the agreement between ML and BSJ was partly oral in terms of the arrangement to transfer the Property and partly written in terms of the granny flat agreement. BM submits that the consideration for the transfer should have been expressed as pursuant to the granny flat agreement, rather than for the natural love and affection between BSJ and ML. Further, BM says that because the two transactions are inter-related, the issue of undue influence with respect to the transfer must be considered alongside undue influence with respect to the granny flat agreement. [130] ML’s submissions in response appear to misconstrue BM’s submissions as to the effect of the granny flat agreement on the question of undue influence with respect 50 Social Security Act 1991 (Cth) s12A, s 1118, s 1123; Gifting www.humanservices.gov.au; Centrelink may apply a reasonableness test to determine if the person giving away an asset is still to be treated as a homeowner, affecting pension entitlements, entitlement to rent assistance and assistance for residential aged care. 51 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 28(3)(c): the Tribunal may inform itself in any way it considers appropriate in conducting a proceeding. -- 20 of 36 -- 21 to the transfer. I do not understand BM to concede that the Property was not procured by the undue influence of ML. [131] I do not consider it is necessary to draw inferences as to what may have been oral terms of any agreement between ML and BSJ. The granny flat document forms part of the factual matrix relevant to the transfer of the Property. Its terms are relevant to a determination as to whether the presumption of undue influence has been rebutted. [132] ML relies on the granny flat agreement to rebut the presumption of undue influence. ML makes submissions that the granny flat agreement only benefits BSJ and that she has limited her own interest in the Property (compared to the rights she held under the Property transfer alone) by creating a life interest in the Property, obliging her to care for BSJ and requiring her to meet all building, land, operating expenses, general household bills, and medical bills for the remainder of BSJ’s life. For the reasons given earlier, I do not think the granny flat agreement records any such agreement on the part of ML. [133] Even if it were possible to construe the agreement as binding on ML, I do not think the document evidences a proprietary interest in the land, despite the use of the words “life interest”. Rather, absent any reference to a right to “use and occupy” or similar words, use of the words a “right to reside”, suggests a personal and revocable licence to live in the house and not a proprietary interest in the land.52 [134] At the hearing ML was asked what would happen if BSJ required nursing home care and he was unable to access the value of his home to acquire that care because of the transfer. ML said: “We will look after him”. Counsel for ML asked a further question: “If needed would you sell or mortgage the home to raise funds for a nursing home?” ML responded: “Absolutely. I just want him happy”. [135] Apart from the leading nature of the question, it does seem late in the piece to be making such an extravagant commitment, when the issue could have been addressed at the time of the transfer. [136] I find that the granny flat agreement does not protect BSJ’s interests. The document is so imprecise that it furthers my earlier expressed view that in fulfilment of her obligations to BSJ, Ms Severin should have strongly recommended that she draft the agreement to protect BSJ’s interests. I also find that ML, acting in the best interests of her father, as a fiduciary, should have ensured BSJ took legal advice in relation to the granny flat agreement. [137] I do not accept ML’s submission that BSJ received advice from an independent solicitor and Centrelink in relation to the agreement. The extent of Centrelink’s advice is unknown. Ms Severin’s evidence is that she did not see a copy of the granny flat agreement and did not assist in its preparation. ML has cared for and supported BSJ for more than 34 years and remains committed to doing so for the rest of his life. [138] I accept ML’s evidence as to the care and support given to BSJ over the last 34 years. 52 Re Exeter (OS 1090 – 1987) 9 March 1988, McPherson J. -- 21 of 36 -- 22 [139] I note from Dr Manfield’s records the many illnesses suffered by BSJ. ML has been the member of the family on the spot to provide care and support. She was also on the spot to assist BSJ during the period following the death of his wife. [140] ML and her family have lived with BSJ, basically under the one roof, for a very long period of time. That has obviously been a mutually beneficial arrangement. [141] To the extent that ML proffers her care for BSJ over the years as an explanation for the gift, I do not doubt BSJ’s love and gratitude to ML. I do not doubt that a parent may wish to express love and gratitude in a tangible way. If BSJ had the capacity to make a gift of his Property to his daughter, he may of course do so. The fact of ML’s status as BSJ’s attorney removes the matter from that fairly straightforward consideration. [142] At the time of the transfer, BSJ was 90 years of age, recently widowed and with a long history of serious illness. For these reasons, the very care and support given by ML and the closeness of the relationship suggests that BSJ was not able to deal with ML on an equal footing53 and given his age and infirmity that he was dependent on ML. [143] BM’s evidence is that at the time of the transfer BSJ was highly dependent on ML and that has continued, for transport to the shops, medical appointments, and financial and personal decision making. BM says that there is a high level of trust between BSJ and ML, making BSJ vulnerable to undue influence. [144] BM also says that phone calls to and from his father are through ML rather than direct and that ML supervises any visits he has to his father. [145] ML denies that her brother and sister are not able to visit BSJ whenever they choose. She says that both have keys to the Property. BM denies he has a key. [146] In relation to phone contact, ML says that since the NBN was installed only one phone line is available on ML’s side of the Property and BSJ can be reached through ML’s mobile phone. No date is given for the start of this arrangement. [147] ML denies supervising visits to BSJ until May of 2020 but says that because she lives at the Property, she is around and participates in conversations. [148] I find that at the time of the transfer BSJ was very old, had a history of serious illness and was recently bereaved. I find that ML provided care and support for her father and was a constant presence in his life including through his access to the phone and being present when BM and others might visit BSJ. [149] For these reasons, I am not satisfied that ML has established BSJ was free of her influence at the time of the transfer. Apart from section 87 of the POA, there also exists in the relationship between BSJ and ML a relationship of influence. The high level of dependence and trust in this relationship makes the case for a presumption of influence a compelling one.54 [150] That conclusion is relevant to the next matter submitted by ML. 53 Watkins v Combes (1922) 30 CLR 180, 187-8. 54 Smith v Glegg [2004] QSC 443 per McMurdo J to the same effect at [41]. -- 22 of 36 -- 23 Despite the status of (BSJ’s) independent financial or legal advice, (BSJ) had a long term intention to gift the Property to ML; was able to make his own decisions about whether and how the transaction might affect his interests; as in Birch’s case, even if (BSJ) had received advice to the effect that it was against his interests to effect the transfer, he would have, more likely than not, proceeded with the transfer given his long-term intention to do so and his reasons for doing so (protecting the asset from challenge on his death). [151] I have previously found that BSJ had a long-term intention to leave the Property to ML in his will. I have not found and do not find that BSJ had a long-term intention to make a gift of the Property to ML in his lifetime. I have observed that the decision to make a gift of the Property appears to have been made in the solicitor’s office, a week before the transfer was effected. I do not accept the submission that because of the asserted long-term intention, BSJ would have made the gift in any event. [152] I have not yet made a finding about BSJ’s capacity. That consideration will be impacted by my finding in relation to whether the presumption of undue influence has been rebutted. [153] On the basis of Ms Severin’s evidence, I accept that BSJ wanted to remove the Property from his estate so that it would not be the subject of a family provision claim after his death. Accepting that was a motivation for the transfer, does not however establish that BSJ’s motivation was not affected by undue influence. BSJ’s motivation does not minimize his age, infirmity and dependence on ML. Establishing a motivation for the transfer does not show independence and a “footing of equality”.55 [154] I also note evidence of BM and HM as to provision for them by BSJ during his lifetime, which contradicts his reasoning in wishing to remove the Property from his estate. I deal with this issue later in the decision. [155] I do not consider there is a sufficient basis on the evidence to find that BSJ would have transferred the property to ML whatever the advice given to him. Other considerations [156] BM refers to BSJ’s cultural and language background and his experiences during World War Two. BM speculates that his father suffers from undiagnosed PTSD. The suggestion is that those factors make BSJ vulnerable to undue influence. There is no supporting evidence to enable me to reach that conclusion. [157] A troubling aspect of this matter is the secrecy which attended the transfer and the granny flat agreement; and the false statement made by ML to her brother on 11 September 2019. [158] BM alleges that on 11 September 2019 ML told BM that the Property was left to her in BSJ’s will. At that time, she had been registered as owner of the Property for over 12 months. ML did not say that the Property had been transferred to her and that she was at that time the registered owner.56 55 Baker & Ors v Afoo & Ors [2014] QSC 46, [97]. 56 Exhibit 4 Statement of BM, paragraph 3. -- 23 of 36 -- 24 [159] ML’s statement of evidence which followed BM’s statement of evidence making the allegation, does not deny what she is alleged to have said and what was kept secret. I accept BM’s evidence in this regard. The falsehood undermines ML’s credibility. [160] If in fact the gift could be explained by a long held and well-known intention within the family to give the Property to ML, because of her care of her parents over the years, it is difficult to see why the transfer was not disclosed to the family when it occurred. The fact that the transfer was kept secret and there was an attempt to cover it up by a falsehood, suggests that the gift could not be explained on the basis promulgated. [161] I do not consider ML has satisfactorily explained keeping the transfer and the granny flat agreement secret from the family. ML’s submissions attempt an explanation with respect to the granny flat agreement. Given her own lack of expertise I do not think the submission that there was no need to discuss the granny flat agreement with BM or HM because neither had expertise in granny flat agreements, is tenable. Ms Severin’s evidence is clear that she did not give legal advice in relation to the content of the granny flat agreement. Nevertheless, ML submits that BSJ did receive advice from Ms Severin and Centrelink on the agreement. That forms the basis of a submission that BSJ was entitled to make a decision with which others may disagree and that he is entitled to his privacy. The submission ignores the improvidence of the gift, the lack of legal advice and the poor protection given by the granny flat agreement. The transfer is not just a decision with which others may disagree. Finally, the assertion of BSJ’s privacy is not consistent with ML’s evidence about the gift being openly discussed in the family. [162] If the planned gift had been discussed in the family before the transfer was effected a more prudent course may have been taken by BSJ. On the evidence there was no rift in the family which would have prevented such a discussion. [163] Further, BSJ’s opinion as to the claim each of his children might legitimately have on his estate may have been clarified by discussion as to the true benefits received by HM and BM from their father. I deal with this issue in my consideration of BSJ’s capacity. [164] I find that ML’s secrecy in relation to the transfer and the granny flat agreement are consistent with undue influence. BSJ’s submissions [165] BSJ’s representative submits that BSJ received independent legal advice from Ms Severin, advice to enter into a granny flat agreement and advice from Centrelink. On this basis it is said that the presumption of undue influence is rebutted. Because of my findings in relation to these matters I am unable to accept the submissions made on behalf of BSJ. In particular, I do not accept that BSJ received any advice in relation to the granny flat agreement he signed, nor as submitted, that the document safeguards his interests. I do not consider, as submitted, that an “indication of willingness” on the part of ML to support BSJ’s entry into aged care is a safeguard for BSJ, if ML is no longer able to or no longer wishes to do so. [166] BSJ’s representative’s submissions set out BSJ’s instructions from April 2021 that BSJ considered he should be able to do as he wished with the Property. It is submitted that BSJ regarded the Property as ML’s home prior to the transfer and that the longstanding living arrangement gave comfort and care to BSJ. The submission -- 24 of 36 -- 25 fails to recognise the lack of an equal footing as between attorney and agent inherent in that living arrangement. I acknowledge BSJ’s view that he should be able to deal with the Property as he wishes. That is not however to the point. The point is whether ML has rebutted the presumption of undue influence which gave rise to the gift to ML. [167] BSJ’s representative submits that the General Principles set out in chapter 2A of the GAA must be observed by the Tribunal. That is accepted. There is a strong cross over with the Tribunal’s obligations in relation to BSJ’s human rights. The HRA is applied in the following paragraphs. [168] As previously noted, I accept that it was BSJ’s wish that the Property be given to ML, however BSJ’s expressed wish will be affected by a finding as to undue influence. I accept that ML is an important part of BSJ’s support network. I do not see that any order made by the Tribunal will diminish that relationship. As to making an order that is least restrictive of BSJ’s rights and interests, I deal later with cognate principles when considering whether any order is reasonable and justified within the terms of the HRA. Human rights considerations [169] Before making a determination on the issue, I now turn to the HRA. Judicial or administrative capacity [170] If I find that the presumption has not been rebutted and as a consequence make a Declaration that the Property was transferred as a result of undue influence, it is relevant to determine if the Tribunal is acting in a judicial capacity exercising a judicial power or acting in an administrative capacity exercising an administrative power. If the latter, then by section 58 of the HRA, the Tribunal must make the decision in a way that is compatible with human rights and give proper consideration to a human right relevant to the decision. [171] Two issues are thrown up by this obligation. The first issue is, what is the nature of the power being exercised by the Tribunal? [172] Judicial power has been described as: …a decision settling for the future, as between defined persons or classes of person, a question as to the existence of a right or obligation, so that an exercise of the power creates a new charter by reference to what that question is in future to be decided as between those persons or classes of person. In other words, the process to be followed must generally be an inquiry concerning the law as it is and the facts as they are, followed by an application of the law as determined to the facts as determined; and the end to be reached must be an act which, so long as it stands, entitles and obliges the persons between whom it intervenes, to observance of the rights and obligations that the application of law to facts has shown to exist.57 [173] Or, more shortly put: the enforcement of existing legal rights.58 57 R v Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty Ltd [1970] 123 CLR 361, 374 per Kitto J; cited by Quinlan CJ in GS v MS [2019] WASC 255. 58 Re Cram, ex parte Newcastle Wallsend Coal Co Pty Ltd (1987) 163 CLR 140, 148. -- 25 of 36 -- 26 [174] Bell J in PJB v Melbourne Health and State Trustees Ltd 59(Patrick’s case) distilled some general principles from his earlier decision in Re Kracke60 as to the character of powers exercised by courts and tribunals, including: It is a legislative function to create new rules of law having general application while it is an administrative function to apply such rules to particular cases; it is a judicial function to make binding determinations of existing legal right, while it is an administrative function to exercise discretionary authority to make orders creating new rights and obligations, especially on the basis of policy considerations. [175] Also helpful is the analysis of Ellicott J in Burns v Australian National University61 where his Honour saw “administrative” as carrying “the notion of ‘managing’, ‘executing’ or ‘carrying into effect.’” He said the expression “decision of an administrative character” is: At least apt to describe all those decisions, neither judicial nor legislative in character, which Ministers, public servants, government agencies and others make in the exercise of statutory power conferred on them, whether by Act of Parliament or by delegated legislation… [176] The Tribunal is a court of record.62 It exercises both judicial and administrative powers. [177] It is likely that if I make a Declaration that the Property was transferred as a result of undue influence, that will be an exercise of judicial power enforcing existing legal rights as between the parties. [178] A Declaration has been described in this way: …declaratory relief, being a judgment of a court of law, can only be given by way of the judicial determination of a legal controversy, settling the dispute once and for all in such a manner as to give rise to a res judicata, or issue estoppel. The declaration identifies and vindicates legal (or equitable) rights.63 [179] Without a further order a Declaration is not enforceable in and of itself. [180] The reason why characterisation of the power exercised is relevant, relates to the second issue. The interplay between section 5(2)(a) and section 58 of the HRA is not absolutely clear. One construction is that the legislative intention is not to apply HRA rights to courts or tribunals exercising judicial power, rather, just that a court or tribunal will have regard to human rights as part of the process of interpretation. Another construction is that courts or tribunals are bound to apply the HRA to the conduct of their own proceedings, where the nature of the function they are performing involves applying or enforcing human rights which relate to that function. Last is the construction that courts and tribunals consider rights which relate to the substance of the proceeding as well as its process. [181] The second mentioned construction is known as the intermediate construction, using a functional approach to identifying the rights which the Court or Tribunal is to 59 [2011] VSC 327, [124]. 60 Re Kracke v Mental Health Board (2009) 29 VAR 1. 61 (1982) 61 FLR 76, 83,84. 62 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 164. 63 Taylor v O’Beirne [2010] QCA 188, [28]. -- 26 of 36 -- 27 apply.64 This is the approach largely adopted in Victorian Courts applying like legislation to the HRA. [182] The question of the interplay between s 5(2)(a) and s 58 of the HRA has not been definitively considered in Queensland. Ryan J in Innes v Electoral Commission of Queensland (No 2)65 held, “without solidly deciding” that she would adopt the intermediate approach to s 5(2)(a) and would use the functional approach to identify the rights which relate to that function. [183] On the basis that the enforcement of existing legal obligations as between ML as attorney and BSJ as principal is the exercise of judicial power, I will apply the intermediate construction. Section 87 of the POA falls within Chapter 5 of the POA which sets out the functions and standards of proper performance of attorneys. Chapter 6 of the POA is concerned with the powers of the Supreme Court and the Tribunal. By s 109A of the POA the Tribunal is given the same jurisdiction and powers for enduring documents as the Supreme Court. The Court and the Tribunal have wide powers to make orders in relation to an issue involving an attorney’s power. [184] The right to recognition as a person before the law66 is relevant to this proceeding. BSJ has been represented throughout the proceeding and his evidence and submissions taken into account. The right to a fair hearing67 is also obviously relevant to the function of the Tribunal. The conduct of the hearing in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) ensures a fair hearing. [185] Beyond those rights it is not apparent to me that the nature of the function the Tribunal is performing, in ensuring proper performance of an attorney’s powers, involves applying or enforcing any other human right. [186] That conclusion brings to an end any application of the HRA under s 5(2)(a). Administrative Power - Substantive Obligations [187] If I am wrong about the exercise of judicial power, and the Tribunal is performing a function of a public nature (because the function is conferred on the Tribunal under a statutory provision)68 and is exercising an administrative power, then the Tribunal’s obligations are: (a) substantive: not to make a decision in a way that is incompatible with human rights: s 58(1)(a); and (b) procedural: not to fail to give proper consideration to a relevant human right in making a decision: s 58(1)(b). [188] In relation to the substantive limb, by s 8 of the HRA - an act or decision is compatible with human rights if: (a) it does not limit a human right; or 64 Re Kracke v Mental Health Review Board (2009) 29 VAR 1, [250], [254]. 65 (2020) 5 QR 623. 66 The HRA s 15. 67 Ibid s 31. 68 Ibid s 10(a). -- 27 of 36 -- 28 (b) it limits a human right only to the extent that is reasonable and demonstrably justifiable in accordance with s 13. [189] Section 13 of the HRA sets out the factors which may be relevant to deciding if a limit on human rights is reasonable and justifiable. [190] An act or decision will limit a human right if it “places limitations or restrictions on, or interferes with, the human rights of a person.”69 Identification of human rights - limits on human rights – reasonable and justified [191] Incompatibility under s 58(1)(a) of the HRA can be considered in the following way:70 (a) the human rights relevant to a Declaration that the presumption of undue influence has not been rebutted and that the transfer was induced by ML’s undue influence are: the right to recognition as a person before the law; property rights and privacy rights. (b) Such a Declaration will: (i) limit BSJ’s recognition as a person with capacity to make a gift of the Property; (ii) form the basis of further consequential orders which may impugn the transfer of the Property to ML; (iii) as a result of further consequential orders, interfere with BSJ’s privacy in terms of his decision to transfer the Property to ML, his intentions as to how he prefers his children in terms of allocation of his property and ultimately, his estate; and will interfere with the documentation (which can be interpreted as correspondence) giving effect to the transfer. I do not consider however that any decision as contemplated by this Tribunal will unlawfully interfere with BSJ’s right to privacy. However, it is possible that his rights may be arbitrarily interfered with on the basis of Bell J’s conclusion that an arbitrary interference extends to an interference which in the particular circumstances applying to the individual are unreasonable in the sense of not being proportionate to a legitimate aim sought.71 (c) As to whether the limits discussed are reasonable, and demonstrably justified having regard to the matters set out in s 13(2) of the HRA, it is my view that the limits are reasonable and justified because: (i) of my finding as to the improvidence of gift in favour of ML, my finding that the transfer was not the well understood act of a man in a position to exercise a free judgment based on information as full as the donee, and my finding that there was an inequality in the relationship because of 69 Innes v Electoral Commission of Queensland [No2] [2020] QSC 293, [291]; followed in Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, [130]. 70 Minogue v Thompson [2021] VSC 56, [80]; applied in Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, [132]. 71 PJB v Melbourne Health and State Trustees Ltd [2011] VSC 327, [85]. -- 28 of 36 -- 29 BSJ’s age, infirmity and dependence on ML. These findings all result from a failure by ML to rebut the presumption of undue influence; (ii) of the clear statutory requirement under s 87 of the POA for an attorney to rebut the presumption of undue influence which arises from receipt of a substantial gift such as the Property. If on the facts that presumption is not rebutted s 87 sets out the result. That is, the transaction was induced by the attorney’s undue influence. It is that statutory outcome and the orders which may follow which limit BSJ’s human rights as identified; (iii) Section 87 applies to the gift of the Property, the equitable doctrine of undue influence and the availability of equitable remedies. As McMurdo J said of the section in Smith v Glegg:72 Because of a perceived risk of undue influence in the context of principal and attorney, the evident intent is to provide strong protection against the risk of some misconduct by an attorney, by requiring the recipient in all cases to justify the transaction. (iv) Section 87 of the POA reflects a long-established principle whereby a principal is protected from undue influence. That protection is necessary because the result of undue influence is that a person’s will is overborne.73 Section 87 of the POA and the equitable principles which sit behind it are consistent with a free and democratic society based on human dignity, equality and freedom. Persons subject to undue influence cannot participate fully in such a society. (v) I consider any limitation of BSJ’s identified human rights is reflective of the purpose of section 87 of the POA. It is an important purpose. Because of the mandatory terms of section 87 I do not consider that there is any less restrictive and reasonably available way to achieve the purpose of section 87. Administrative power – procedural obligation [192] The Tribunal’s procedural obligation under s 58(1)(b) of the HRA to give proper consideration to BSJ’s human rights, involves, but is not limited to the factors in s 58(5). Those factors are identifying the human rights that may be affected by the decision; and considering whether the decision would be compatible with human rights. [193] Guidance can also be taken from the approach of Victorian Courts applying a like provision to s 58(1)(b), albeit without a like provision to s 58(5):74 (a) an understanding of BSJ’s rights affected by the decision and how those rights will be interfered with; (b) for the Tribunal to seriously turn its mind to the possible impact of the decision on BSJ’s human rights and the implications for him; 72 [2004] QSC 443, [39]. 73 Commercial Bank of Australia Ltd v Amadio (1982-83) 151 CLR 447, 461. 74 Bare v Independent Broad-Based Anti-Corruption Commission (2015) 48 VR 129 at 223, [288]. applied in Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273, [135]. -- 29 of 36 -- 30 (c) for the Tribunal to identify the countervailing interests or obligations; and (d) balance competing private and public interests as part of the exercise of justification. [194] In this case there is a cross-over with the consideration given to s 58(1)(a) of the HRA, insofar as BSJ’s affected human rights have been identified, the interference with or limitation of those rights recognised, and an analysis undertaken of the extent to which that interference or limitation is reasonable and justified. [195] In this case the public interest in protecting persons from the actions of their attorneys, in taking substantial gifts from their principals where the principal and attorney are not on an equal footing, outweighs a person’s private interest (and concomitant human rights) in making a gift. That must be the case because of the statutory imperative in section 87 of the POA. [196] It is also the case that because of the statutory imperative in section 87 of the POA, 58(2) of the HRA is engaged with the result that the obligations on a public entity such as the Tribunal, set out in s 58(1) do not apply if the Tribunal could not reasonably have acted differently or made a different decision because of a statutory provision. Conclusion [197] For all these reasons, I conclude that a Declaration that the transfer of the Property was induced by ML’s undue influence, based on a finding ML has not rebutted the presumption of undue influence in the circumstances, is compatible with BSJ’s human rights. I also conclude that by virtue of s 58(2) of the HRA the Tribunal could not reasonably have made a different decision because of the terms of s 87 of the POA. [198] Also for these reasons, I consider that within the terms of the GAA, the Tribunal could not make a less restrictive order. Decision [199] I am not satisfied75that ML has rebutted the presumption of undue influence, because in summary: (a) the independent advice received by BSJ did not protect his interests; (b) the transfer of the Property was improvident, yet ML being an attorney for BSJ did not put his interests first, including by ensuring a legally enforceable agreement was reached which protected his need for accommodation and long term care; (c) the granny flat agreement offers BSJ no enforceable rights to accommodation and long term care; (d) BSJ’s age, infirmity and dependence on ML for care and support, along with the relationship of trust between attorney and principal, means that the gift of his Property to ML was not the independent and well-understood act of a man 75 Briginshaw v Briginshaw (1938) 60 CLR 336, 362. -- 30 of 36 -- 31 in a position to exercise a free judgment based on information as full as that of the donee; and (e) the gift was attended by secrecy and attempted cover up by ML consistent with undue influence. [200] I declare that transfer of the Property by BSJ to ML was induced by undue influence by ML. Did BSJ lack capacity to transfer the Property? [201] BM bears the onus of establishing that BSJ lacked capacity to transfer the Property on September 2018. Many of the findings I have made in relation to the question of whether the presumption of undue influence has been rebutted are also relevant to the question of capacity to make the decision to gift the Property to ML. [202] By reference to the first limb of the definition of capacity in the GAA – understanding the nature and effect of decisions about the matter – I find that BSJ may have understood the nature of the transaction he entered into, however, because of the improvidence of the gift made; the lack of sufficient independent legal advice and the lack of any certain right to live in the Property, I am not satisfied that he understood the effect of the transaction. [203] Also relevant to an understanding of the effect of the decision was BSJ’s apparent misunderstanding of the claims each of his children might have on his estate. [204] Ms Severin’s evidence is that BSJ told her that in effect, he wished to prefer ML because he had given financial assistance to both HM and BM during his lifetime. [205] It was only at the hearing that the nature of the claimed assistance emerged. Ms Severin said that she was told by BSJ that he had given a home deposit and financial support for a business to BM, and had transferred real estate at below market value to HM. [206] BM said at the hearing that he received a $12,000.00 sum from his father to assist in purchasing a home in 1986 and that sum was repaid with 18% interest. He said that he received no financial support for his business. BM denied receiving other financial assistance from BSJ. In relation to the transfer of a property to HM, she said at the hearing that this occurred 18 years ago. HM paid her father the sum of $280,000.00 for a property worth approximately $330,000.00. I accept the evidence of both BM and HM on this issue because of the open and clear way they gave this evidence, with no prior notice that this was BSJ’s opinion. I reject ML’s submission that their evidence is unreliable because there is no documentary evidence of the transactions. [207] In terms of assistance given by BSJ to his children over his lifetime, I note the very substantial benefit received by ML and her family, through residing in the Property for minimal rent over a period of 34 years. [208] For these reasons and based on the information given by BSJ to Ms Severin, I find that BSJ did not have a good understanding of the claims each of his children may have upon his estate, because he was wrong about the assistance given to BM and HM and he ignored the assistance given to ML. -- 31 of 36 -- 32 [209] In terms of the test for testamentary capacity applied in these circumstances, that finding goes to BSJ’s ability to evaluate and discriminate between the respective strengths of the claims of his children, to his estate. [210] I find in the terms expressed in Crago v McIntyre76 that by making the gift to ML, BSJ has failed to do justice, not only to himself, but also to those who may become dependent upon him, or to whom he might owe or acquire a moral duty to provide. [211] I find that BSJ did not understand the effect of his decision to transfer the Property to ML as a gift during his lifetime. [212] As to the second limb of the definition – freely and voluntarily making decisions about the matter – given my finding that the presumption of undue influence has not been rebutted I am unable to find that BSJ has freely and voluntarily made the decision to transfer the Property to ML. [213] Because of Ms Severin’s evidence it is not relevant to consider further the third limb of the definition of capacity. BSJ’s ability to communicate his decision is not impaired. [214] The representative for BSJ submitted that BSJ is entitled to rely on the presumption of capacity because of the medical assessment of Dr Manfield and the assessment of Ms Severin. [215] I recognise that Dr Manfield and Ms Severin were both of the opinion that BSJ had capacity to make decisions in relation to his estate. Their opinions are however only part of a larger picture and are not of themselves determinative of the issue. Each were missing some pieces of information. Importantly, a final determination could only be arrived at after ML’s evidence seeking to justify the gift had been scrutinised. [216] For these reasons and the reasons set out earlier in the decision, I am unable to accept the submission made on behalf of BSJ that the assessment of Dr Manfield and Ms Severin are conclusive of BSJ’s capacity to make the gift to ML. Other evidence [217] For completeness, I note that apart from the evidence referred to so far in this decision, a statement dated 22 July 2021, has been filed by FLM, BSJ’s step- daughter and half-sister of BSJ’s three children ML, BM and HM. [218] FLM lives in Bathurst. FLM expresses a view that her step-father had capacity to transfer the Property to ML and is supportive of ML. She did not attend the hearing and as a result, her statement is not an exhibit in the proceedings. To the extent that I have had regard to the statement I have attributed little weight to it. [219] A statement has also been filed by BM’s daughter supportive of her father and rejecting allegations made against him by HM. BM’s daughter did not attend the hearing. Her statement is not an exhibit in the proceedings. To the extent that I have had regard to the statement I have attributed little weight to it. 76 [1976] 1 NSWLR 729, 741. -- 32 of 36 -- 33 Human rights considerations [220] Before concluding my consideration as to whether the presumption of capacity for BSJ to make the gift to ML is rebutted, and whether a Declaration about capacity should be made, I turn to the Tribunal’s obligations under the HRA. [221] The power to make a Declaration about capacity for a matter, is given to the Tribunal by s 146 of the GAA. Relevantly s 147 of the GAA provides that a Declaration about whether a person had capacity to enter a contract is, in a subsequent proceeding in which the validity of the contract is in issue, evidence about the person’s capacity. [222] My view is that the Tribunal is exercising judicial power in making a Declaration about capacity, because of the nature of a Declaration described earlier. Further a Declaration that BSJ lacked capacity to make the gift to ML and any consequential orders will settle the issue of BSJ’s capacity to make the gift as between BSJ, ML and other members of the family interested in the assets comprising BSJ’s estate. [223] In this case I am not called upon to determine capacity for the purpose of appointing a guardian or an administrator. Appointment of a guardian or an administrator is the exercise of administrative power.77 [224] On the basis that a Declaration about capacity in this matter is the exercise of judicial power it remains for me to consider the functions of the Tribunal, BSJ’s human rights which relate to those functions, and to apply those human rights in the processes of the Tribunal. A key function of the Tribunal is to assess BSJ’s capacity, taking account of the presumption of capacity. The human rights relevant to the Tribunal’s functions are the right to recognition before the law78 and the right to a fair hearing.79 In this case, BSJ has an advocate representing him to ensure his recognition as a person before the law, and his evidence and submissions have been taken into account. The processes and General Principles prescribed by the GAA have been applied and the QCAT Act has been observed to ensure a fair hearing. [225] I am of the view that the Tribunal’s obligations under the HRA have been met with respect to making a Declaration about capacity. [226] If I am wrong and making a Declaration about capacity is the result of an exercise of administrative power by the Tribunal performing a function of a public nature, it will be necessary to apply the methodology addressed earlier. [227] First, as to the Tribunal’s substantive obligation not to make a decision in a way that is incompatible with human rights, the following is relevant. Identification of human rights [228] A Declaration about capacity to transfer the Property brings into focus the human rights of recognition as a person before the law;80 property rights;81 and privacy rights.82 77 PJB v Melbourne Health and State Trustees Ltd [2011] VSC 327, [125]. 78 The HRA s 15. 79 Ibid s 31. 80 Ibid s 15. 81 Ibid s 24. 82 Ibid s 25. -- 33 of 36 -- 34 Limits on human rights [229] A Declaration of itself will not interfere with or limit BSJ’s human rights, however, a Declaration is a platform for subsequent orders which may limit BSJ’s human rights. The recognition of BSJ as a person with capacity to make a gift of the Property will be interfered with by a Declaration. Transfer of the Property to ML may be impugned by further orders. BSJ’s privacy in terms of his decision to transfer the Property to ML may be arbitrarily interfered with by further orders. BSJ’s intentions as to how he prefers his children, in terms of allocation of his property and ultimately, his estate, may be limited by further orders. Finally, there may be interference with the documentation (or correspondence) giving effect to the transfer as a result of further orders. Limits reasonable and justified [230] I consider that making a Declaration about BSJ’s capacity to gift the Property to ML, with its potential for limits on BSJ’s human rights if further orders are made, is reasonable and justified, because: (a) any Declaration would be made as a consequence of the operation of section 87 of the POA; (b) any Declaration would be made in circumstances where the presumption of capacity has been rebutted; (c) a free and democratic society based on human dignity, equality and freedom relies on the rule of law to provide certainty as to the efficacy of transactions conducted by its citizens. Capacity to contract is a fundamental tenet of contract law on which so much of a functioning society depends. Procedural obligations [231] As to the Tribunal’s procedural obligations under the HRA, there is a cross-over with the consideration given to the Tribunal’s substantive obligations insofar as BSJ’s human rights have been identified, the interference with or limitation of those rights recognised, and an analysis undertaken of the extent to which that interference or limitation is reasonable and justified. I adopt that reasoning in addressing the Tribunal’s procedural obligations. [232] Further, in this case, section 87 of the POA casts a net over the question of BSJ’s capacity and the orders which are made by the Tribunal. Section 87 of the POA brings its own countervailing obligations and public interest considerations, which for the reasons discussed earlier outweigh a person’s private interests. Conclusion [233] For all these reasons I conclude that a Declaration about BSJ’s capacity to gift the Property to ML is compatible with BSJ’s human rights. [234] As with my consideration of the impact of the HRA on the issue of undue influence, I conclude that by virtue of s 58(2) of the HRA the Tribunal could not reasonably have made a different decision because of the terms of section 87 of the POA. Likewise, within the terms of the GAA the Tribunal could not have made a less restrictive order. -- 34 of 36 -- 35 Decision as to capacity [235] I find that the presumption of capacity for the decision in question has been rebutted on the evidence, and that BSJ lacked the capacity to make a gift of the Property to ML. [236] I declare that BSJ lacked capacity to make a decision to transfer the Property to ML on 20 September 2018. Relief [237] BM submits that he is entitled to a Declaration that the Property is held on constructive trust by ML for BSJ and that an order should be made requiring ML to transfer the Property to BSJ’s sole name. [238] I am satisfied as to my jurisdiction to make a Declaration in relation to the transfer being induced by undue influence pursuant to s 60 of the QCAT Act and s 109A, s 110 and s 118(1)(b) of the POA. I am able to make a Declaration as to BSJ’s capacity to make the decision to transfer the Property, pursuant to s 60 of the QCAT Act and s 146 of the GAA. [239] By s 147 of the GAA, a Declaration about whether a person had capacity to enter a contract is, in a subsequent proceeding in which the validity of the contract is in issue, evidence about the person’s capacity. [240] I note the statement of Jackson J in Baker & Ors v Affoo & Ors83 that the consequence of the presumption of undue influence is left to the operation of the rules of equity. [241] I require submissions from the parties as to my jurisdiction and power to make the orders sought by the applicant BM; or as to any alternative form of order which might be made. In this regard, I note the power in s 60(2) of the QCAT Act to make an order it considers necessary or desirable to give effect to a declaration under subsection (1). Order and Directions [242] The orders of the Tribunal are: (a) Declare that the transfer made by BSJ to ML of Lot 4 and Lot 5 on Registered Plan 19623 on 20 September 2018 was induced by the undue influence of ML. (b) Declare that BSJ lacked capacity to make the decision to transfer to ML Lot 4 and Lot 5 on Registered Plan 19623 on 20 September 2018. [243] The Tribunal directs that: (a) The applicant BM file in the Tribunal two (2) copies and give to ML, BSJ and HM one (1) copy of submissions in relation to this Tribunal’s jurisdiction to make a declaration as to a constructive trust and to order the transfer of Lot 4 and Lot 5 on Registered Plan 19623, the form of any such order, or any alternative order, by: 4:00pm on 20 January 2022. 83 [2014] QSC 46, [85]. -- 35 of 36 -- 36 (b) ML, BSJ and HM file in the Tribunal two (2) copies and give to the applicant BM one (1) copy of any submissions in reply, including any alternative form of order, by: 4:00pm on 3 February 2022. (c) The parties must advise the Tribunal in writing if they require an oral hearing in relation to the question of jurisdiction and the form of any order by 4:00pm on 3 February 2022, otherwise the issues will be determined on the papers not before 3 February 2022. -- 36 of 36 --