BKD [2013] QCAT 422

CITATION: BKD [2013] QCAT 422 PARTIES: BKD APPLICATION NUMBER: GAA3788-13 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: C Endicott, Senior Member DELIVERED ON: 2 July 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The application for directions by BR is dismissed CATCHWORDS: GUARDIANSHIP – where administrator appointed – where sale of assets being undertaken by the administrator – where proposed purchaser sought orders for the tribunal to give directions about the sale to the administrator Guardianship and Administration Act 2000 ss 81, 138 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] An administrator has been appointed since October 2008 to make financial decisions for BKD. One of the assets owned by BKD is a half share in a property usually described as the H Property. The administrator, The Public Trustee of Queensland, entered into an agreement with BR, the brother of BKD, to transfer BKD’s share in that property to BR. [2] BR made an application to QCAT asking the tribunal to give directions to the administrator. The power to give directions is set out in section 81 of -- 1 of 3 -- 2 the Guardianship and Administration Act 2000 and is clarified in section 138 of that Act. [3] BR stated in his application that matters concerning the business assets of BKD had not been resolved and he sought directions for the resolution of those matters. BR had put a proposal as to how to finalise the outstanding issues to the administrator in February 2013 but finalisation had not been achieved by May 2013. QCAT was asked to make directions requiring the parties to meet to reach agreement or at least to agree on a way forward. [4] The Public Trustee provided some comments on the application for directions. It was confirmed that a proposal was put to the administrator in February 2013, however that proposal was responded to by the administrator on 18 April 2013. The administrator informed BR that updated valuations were required in order to calculate BKD’s interest in the assets. The administrator had engaged valuers to carry out valuations of the real property and proposed engaging other valuers to value the plant and equipment rather than rely on book values. The administrator proposed that a business broker be engaged to value the business. [5] The Public Trustee submitted that once those valuations had been obtained, the parties could meet to determine an appropriate sale price of BKD’s interest. BR did not agree and wanted a meeting to be held without engaging valuations of the assets to be sold. The Public Trustee submitted that if the process to obtain the valuations continued to be frustrated, then an application may be necessary to the court for the appointment of a receiver. [6] As the material filed at QCAT did not reveal a proper basis on which directions could be made to the administrator, the applicant was asked to provide further grounds in support of his application. Further information was provided on behalf of the applicant on 30 June 2013. [7] Those further submissions did not reveal a basis on which the tribunal should make directions. It was merely submitted that directions could end a cycle of delay and could assist the parties to work to resolve the issues in a timely manner. The submissions did not address the issues raised by the administrator that valuations were needed before a sale price could be set. [8] The tribunal appoints decision makers so that decisions can be made for adults with impaired capacity. Once an appointment is made, the tribunal does not generally seek to constrain the actions of the administrator in carrying out the role and obligations of an administrator apart from requiring plans and accounts to be lodged with the tribunal, following up matters arising from the plans and accounts and on occasions authorising specific transactions if a conflict of interest arises. The power to give directions to an administrator is exercised by the tribunal when necessary on occasions to support some specific aspect of decision making for an adult. -- 2 of 3 -- 3 [9] BR wanted the tribunal to give a direction that the administrator should meet with him before valuations of the assets of BKD were obtained or indeed to direct that valuations should be dispensed with and that sale negotiations be completed without delay. I was not satisfied that the application for directions had any substance. I accepted the evidence provided to the tribunal that the negotiations were continuing, that the administrator was taking steps to sell BKD’s interests in the property to BR and that a meeting of the parties would be premature if information relevant to the sale had not yet been obtained. [10] The evidence clearly established that the administrator is taking appropriate steps to finalise the sale. It is clear that the proposed purchaser is not in agreement with the steps being taken, but that is not an unusual circumstance when parties are in the middle of a complex transaction. There was no need established for the tribunal to interfere with the discharge of the administrator’s functions in this matter. To do so would be inappropriate. [11] The application for directions was dismissed. -- 3 of 3 --