CGB (No 3) [2016] QCAT 189

CITATION: CGB (No 3) [2016] QCAT 189 PARTIES: CGB (Applicant) APPLICATION NUMBER: GAA12185-15 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Joachim DELIVERED ON: 20 June 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. No order is made as to costs. CATCHWORDS: ADMINISTRATION – COSTS – where Tribunal conducted a review of the administrators – where daughter of adult seeks information from administrators – where no application received – where Tribunal continues appointment of administrators – where parties seek costs Guardianship and Administration Act 2000 (Qld), s 31, s 47, s 127 Queensland Civil and Administration Act 2009 (Qld), s 7, s 100, s 102 BXE [2015] QCAT 253 CGB (No 2) [2016] QCAT 089 APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). REPRESENTATIVES: DAJ represented by Mr D Morgan of Counsel instructed by Minter Ellison. SBK represented by Mr G Radcliff of Counsel instructed by Cooper Maloy Legal. -- 1 of 4 -- 2 REASONS FOR DECISION [1] CGB is a self-made millionaire. He lives in a residential aged care facility on the Gold Coast. His financial interests include an accommodation bond, a quarry, a mine and large amounts of cash in bank deposits. He also owns industrial properties. The Public Trustee of Queensland is appointed to manage all of his financial affairs except for various properties and investments, for which SBK is appointed administrator. These appointments were last made on 7 April 20161 following a hearing at Southport. [2] These latest appointments followed a review of the appointment of the administrators, which was initiated by the Tribunal. The administrators were appointed initially in 2014, and subsequently in 2015 their appointments were continued. The Tribunal initiated the review of the administrator’s appointments when the Tribunal received SBK’s financial management plan for CGB, which did not satisfy the Tribunal in terms of the viability of the approach being taken, and the non-inclusion of a budget. [3] Following the review, under s 31 of the Guardianship and Administration Act 2000 (Qld) (GAA Act), the Tribunal continued the appointments of the Public Trustee and SBK. Detailed reasons2 for that decision were delivered on 24 May 2016. Following brief submissions on 7 April 2016 at the end of the hearing, parties were directed to provide written submissions as to costs as it was evident that costs were being sought by more than one party. [4] The relevant legislative provisions for this matter are contained in s 127 of the GAA Act. The cost provisions in the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) do not apply to the circumstances of this matter as explained below. [5] The starting point for costs in a guardianship matter is that each party in a proceeding is to bear their own costs. If however, the Tribunal finds that there are exceptional circumstances, including for example if the Tribunal considers an application frivolous or vexatious, the Tribunal may order an applicant to pay an active parties costs, and the costs of the Tribunal. These provisions are different from the costs provision in s 102 of the QCAT Act. [6] Section 102 provides that the Tribunal may make an order requiring a party to a proceeding to pay costs if the Tribunal considers the interests of justice require it to make the order. This section does not apply to costs orders in respect of guardianship matters for two reasons. [7] Firstly, s 127 of the GAA Act at subsection (3) indicates which provisions of the QCAT Act apply to the Tribunal for proceedings under the GAA Act. The sections listed are ss 101 and 103 – 109. Section 102 is specifically excluded. Further, s 7 of the QCAT Act at subsection (2) provides that a provision of an enabling Act, which the GAA Act is, ‘prevails over the 1 CGB (No 2) [2016] QCAT 089. 2 Ibid. -- 2 of 4 -- 3 provisions of this Act, to the extent of any inconsistency between them’. Thus s 127 of the GAA Act prevails in respect to orders for costs. [8] I note that following the hearing in April 2015, there has been a flurry of activity involving a number of parties concerned with CGB. These are outlined briefly in the reasons for decision in respect of the hearing of 7 April 2016.3 The reader is referred, in particular, to paragraphs [4] – [12]. There is no doubt that when DAJ was confirmed as a daughter of CGB that she commenced making quite in-depth enquiries of the administrators in respect of her father’s financial matters. This involved meetings and email correspondence by which she obtained a significant amount of information about her father’s finances. [9] DAJ became somewhat concerned that her father’s affairs were not being managed appropriately and indicated that she would propose an arrangement whereby she became the administrator assisted by a committee of others. SBK went to some length to ensure that he was not required to provide additional information to DAJ other than what he had provided at the meetings. This included seeking orders from the Tribunal about what he would or would not provide to DAJ. SBK wished to protect the adult’s privacy. [10] I have been asked to make a costs order granting DAJ her legal costs of $5,500.00 in this matter, and also to make orders granting the administrator payment from DAJ in the sum of $12,359.60. [11] The arguments provided by SBK is that DAJ was not entitled to information that she sought and she put the administrator to great expense to consider and defend his position and have representation on the day. It was also argued by SBK’s legal team that DAJ did not require the level of legal representation, including a Barrister, which she arranged. [12] DAJ’s legal team submitted that the review was initiated by the Tribunal because of concerns about the adequacy of the budget, and that as DAJ is the only daughter of CGB she needed to be a necessary person to be an active party in the hearings. It was further argued that she needed access to legal advice, and that relevant information needed to be provided to her so that she could be afforded the same respect and courtesy when her views are being sought. [13] The Public Trustee of Queensland submitted that DAJ should bear her own costs, citing s 100 of the QCAT Act, and that her lack of funds was not grounds for a costs order against her father’s estate. [14] The parties submissions essentially overlook the fact that s 127 of the GAA Act only permits the Tribunal to make an order as to costs against an applicant. There is no applicant in this proceeding. This was a Tribunal initiated review. Whilst DAJ indicated that she proposed to seek an appointment, she did not submit an application. It is true at the hearing she 3 CGB (No 2) [2016] QCAT 089. -- 3 of 4 -- 4 indicated she did not intend to proceed with the proposal that she had suggested in an email to the registry. Attempts to compare this case to BXE [2015] QCAT 253 failed to note that in BXE a cost order was made against an applicant. [15] In any event, the Tribunal had not raised an application by DAJ as it had received none. All that had been received was a brief statement in correspondence dated 18 March 2016, in which DAJ states ‘I will propose that I with the aid of a professional support group should assume the role of administrator for my father [CGB]. In the Tribunal’s view this does not constitute an application for the appointment of an administrator. No accompanying material to support any application was received. No financial management plan was received. The notice of hearing issued by the Tribunal contained no application from any party. The matter being dealt with on 7 April 2016 was a review of the appointment of an administrator as per the notice of hearing. [16] Section 127 of the GAA Act only provides that the Tribunal may order an applicant to pay an active party’s costs and the costs of the Tribunal in exceptional circumstances. Otherwise, each party in a proceeding is to bear the party’s own costs in a proceeding. As there was no applicant in this proceeding, there can be no order made as to costs. [17] In respect of the expenses incurred by SBK, s 47 of the GAA Act provides that an administrator for an adult is entitled for reimbursement from the adult of the reasonable expenses incurred in acting as administrator. It is for him to determine what was reasonable in the circumstances of this matter if he is out of pocket. Otherwise, he can seek directions about this from the Tribunal. -- 4 of 4 --