BS (No 2) [2011] QCAT 733

CITATION: BS (No 2) [2011] QCAT 733 PARTIES: BS APPLICATION NUMBER: GAA7264-10 MATTER TYPE: Guardianship and administration matters for adults HEARING DATE: 28 March 2011 HEARD AT: Ipswich DECISION OF: Ron Joachim, Presiding Member Graham Quinlivan, Member DELIVERED ON: 6 July 2011 DELIVERED AT: Brisbane ORDERS MADE: [1] Leave is granted to Ben Turner to withdraw his application for a compensation order. [2] That the Public Trustee of Queensland pay BS compensation. [3] That the applicant and respondent provide written submissions to the Tribunal by 4pm on 5 August 2011 regarding the amount of compensation to be paid with respect to the following items:  Lounge suite;  Washing machine;  XR 250 motor bike;  Chainsaw;  Evaporative air cooler;  Tool box;  Grinders;  Drills;  Mulcher;  CDs and DVDs;  Crockery and cutlery;  Kitchen tables and chairs;  Microwave;  CD stacker;  3 wardrobes;  Dressing table;  Exercise bike;  Treadmill;  Sound system; -- 1 of 28 -- 2  Coffee table;  Lamps. CATCHWORDS: Administration – compensation against the Public Trustee of Queensland as administrator – where Queensland Health employee brought application for compensation – where applicant’s employer seeks to have application withdrawn – where Tribunal accepts verbal application from adult’s brother – where Tribunal waives procedural requirements – where the Public Trustee requests adjournment to produce further oral evidence – where Tribunal decides there will be no further oral evidence and invites final written submissions – where Public Trustee claims he is denied procedural fairness – where Public Trustee has engaged solicitor to negotiate property settlement between adult and former de facto – where Tribunal concerned about lack of protection of adult’s personal property – where adult’s personal property is not subject of property settlement and goes missing – where Public Trustee warned that adult’s property at risk – where Tribunal finds Public Trustee has not acted with reasonable diligence – where Tribunal makes an order for compensation Guardianship and Administration Act 2000, ss 59,155 Trusts Act 1973, s 22 Queensland Civil and Administrative Tribunal Act 2009, ss 28, 61 Briginshaw v Briginshaw (1938) 60 CLR 336 HLB v Trust Company Ltd [2010] QCAT 40 WCD Re [2006] QGAAT 27 WCD No 2 Re [2006] QGAAT 44 APPEARANCES and REPRESENTATION (if any): APPLICANT: BL RESPONDENT: Ms J Waldron representing the Public Trustee of Queensland Ms P Feenley of counsel representing Mr Turner -- 2 of 28 -- 3 REASONS FOR DECISION Background [1] BS was born on 11 June 1965. He lives in the Ipswich area. [2] BS had a motor cycle accident in December 2005 and as a result has an acquired brain injury. [3] He first came to the attention of the former Guardianship and Administration Tribunal when the Tribunal received an application on 5 May 2006 from an Ipswich Hospital social worker. This application sought the appointment of the Public Trustee of Queensland as administrator for BS and the appointment of the Adult Guardian as guardian. [4] The Tribunal made orders on 17 July 2006 as requested in the application. The Public Trustee of Queensland was appointed for all financial matters until further order. The Adult Guardian was appointed for two years for accommodation, health and service provision decision. [5] The Tribunal made further guardianship orders between July 2006 and March 2010. [6] When the Tribunal was contacting parties in relation to a further review of guardianship in 2010, it received a letter dated 5 March 2010 from Ben Turner from the Acquired Brain Injury Outreach Service of Queensland Health. Mr Turner had been working with BS in his capacity of Rehabilitation Coordinator since March 2009. [7] In this letter Mr Turner raised concerns of family members about the lack of communication with the Public Trustee of Queensland and family concerns over the Public Trustee’s perceived actions and inaction. [8] As a result the Tribunal initiated a review of the Public Trustee’s appointment and this review occurred on 23 March 2010 along with the review of the appointment of the Adult Guardian. [9] The Tribunal continued the Public Trustee’s appointment and made the following directions:  That within three (3) months the administrator provide to the Tribunal and the adult’s mother, a written report of his actions or proposed actions in respect of the issues raised in Mr Turner’s letter of 5 March 2010 to QCAT which outlined concerns over the actions and inactions of the administrator.  That within three (3) months the administrator provide to the Tribunal and the adult’s mother a written report of his actions or proposed actions in respect of the adult’s AMP whole of life endowment policy having been cashed in.  That these reports outline whether the administrator proposes to compensate the adult for any loss caused by the administrator’s actions or -- 3 of 28 -- 4 inactions. [10] The Public Trustee provided his report to the Tribunal on 23 June 2010. The response to the three directions is summarised below.  The Public Trustee acknowledges that communication has been an issue raised by BS and his family in the past. Communication occurs on a regular basis between a Senior Trust Officer and Mr Turner, BM, BS and BL.  The Public Trustee retained Peter Sheehy Solicitors to negotiate the terms of the property settlement between BS and his de facto partner BB. Ms Kingswell was Solicitor in the case and acted exclusively for BS. Ms Kingswell advised that the time taken to reach settlement was not excessive. Ms Kingswell confirmed that BS contacted her office during the negotiations and was kept informed about the progress. Peter Sheehy Solicitors advised that BB should be allowed to remain in the property until negotiations were finalised.  The Public Trustee is and was under a legal obligation to ensure that the agreed amounts and time frames stated within the Separation Agreement were adhered to. Advice was sought from the Public Trustee’s Official Solicitor as well as BS’s own legal representative, Ms Kingswell, in relation to the $10,000.00 and the state of the property and advised that any property and/or property damage should be raised with BB or claimed through the Small Claims Tribunal. The Public Trustee’s Property Inspector visited the property after the premises were vacated and has commented that the property is in similar condition to previous annual inspections he carried out allowing for the natural wear and tear.  BS’s property in Walloon has been readied for sale. The Public Trustee has approved BL listing the property for sale, as he is a real estate agent.  Statement of Transactions are sent by the Public Trustee to BS annually detailing fees charged in the relevant statement period. The statement dated 10 March 2010 states that $4,180.99 was paid to Peter Sheehy Solicitors, who acted on BS’s behalf during the property settlement.  The Public Trustee has regularly explained expenditure of funds to BS as well as sending annual Statement of Transactions.  BS’s semi-trailer was sold in March 2007 for $55,000.00 and the prime-mover was sold in October 2007 for $75,000.00. Both of these items were sold by the Public Trustee. An amount of $75,000.00 was repaid to BM in December 2007 for a loan she had made to BS. The balance of the remaining funds were expended on every day living expenses, general repairs and maintenance on BS’s house and vehicles. There were also funds spent on accounting/taxation costs associated with the winding up of BS’s business. -- 4 of 28 -- 5  The Public Trustee is obligated to continue paying Child Support payments on behalf of BS to BB.  The Public Trustee’s authority was sent to AMP via an initial letter on 31 October 2006 and accepted by AMP as sufficient evidence of The Public Trustee’s appointment.  In January and February 2007 BS withdrew amounts totalling $28,000.00 from his AMP account without notifying the Public Trustee of his actions.  When the Public Trustee became aware of these transactions action was taken to withdraw the remaining funds.  BS and his ex-partner BB deposited the above withdrawals into a newly opened joint bank account. The Public Trustee was not notified by BS of the bank account set up for these funds. The bank statement for the joint account shows that the funds were spent over a period of 7 months. On 30 August 2007 the account was closed because it was overdrawn.  The Public Trustee is investigating the processing of the withdrawals from SB’s AMP account. AMP has advised that the Public Trustee’s Authority was overlooked and the withdrawals were processed due to human error. The Public Trustee is currently awaiting a response from AMP as to what, if any, actions they will be taking in regard to this error.  The Public Trustee has not identified that any actions or inactions by this Office as administrator has caused BS to suffer a loss of funds. However, one aspect of this matter is still ongoing. Upon finalisation this will be reviewed. [11] On 15 July 2010 Mr Turner sent a further letter to the Tribunal. Subsequent correspondence of 13 October 2010 and 16 March 2011 was also sent to the Tribunal outlining BS’s family’s concerns about these matters and raising other issues to do with the administration. [12] The concerns raised by Mr Turner in his various letters and an email of 14/12/09 as they relate to the application for compensation can be summarised as follows:  A lack of communication between BS, his family and the Public Trustee such that the family feel their views were not listened to throughout the settlement process and the process of sale of the property despite their efforts to contact the relevant officer.  BS and his family expressed concerns that BS’s solicitor appeared more interested in protecting the rights of the ex partner and that she was able to reside at the property. He received a copy of the financial settlement agreement in September 2010 despite it being -- 5 of 28 -- 6 signed on 11 November 2009. The family dispute the Public Trustee’s contention that “there does not appear to have been any concerns raised prior to the execution of the agreement that BB may cause significant damage to the property and/or take from the house items that were not her personal property.” The family contend the Public Trustee was repeatedly notified of the likelihood of BB taking BS’s property. At a property inspection on 2 July 2009, BB repeatedly said in front of the Public Trustee inspector “I’m taking the lot when I leave.”  BS and his family are of the opinion that the Public Trustee failed to protect his assets in negotiating the separation agreement. The Public Trustee were notified by email from Mr Turner on 14 December 2009 about concerns over damage and removal of property following a visit to the property by the SSs on 11 December 2009 to inspect the property. This email particularised the missing items. The concerns were never addressed. The family were led to believe that a clause would be incorporated in the final agreement to protect BS’s assets and property, including leaving items in a reasonable condition. No such clause was inserted, with the resultant loss of property and the property being left in an adverse condition. Additionally the family wish the Tribunal to consider compensating BS for costs in respect of the separation agreement of which they claim the process was poorly handled.  The family dispute the Public Trustee's assertions that the property deterioration is the result of normal wear and tear. They assert that the Public Trustee did not maintain the property properly and it was not satisfactorily vacated by BB. In their opinion the property was not left in an acceptable state, BS’s assets were taken and no action had been taken regarding this. The family question the statement that the property was left in a condition similar to previous annual inspections.  BS and his family would like to receive information to confirm his expenditure.  BS wants to know what happened to the proceeds of the sale of his truck and trailer.  BS and his family are concerned that no action was taken to investigate claims that an insurance claim in BS’s name was accessed by his ex partner.  Despite an agreement to sell BS’s motor vehicle and jet ski to the family, the items were transported to the auctioning facility at Zillmere at his expense, which also included storage costs.  The family are concerned payments by the Public Trustee for utilities occurred when BS was not residing at the property. -- 6 of 28 -- 7  BS has concerns that the Public Trustee allowed his ex partner to arrange potential buyers and negotiate a selling price for his truck and trailer.  BS and his family are concerned about the time taken by the Public Trustee to act on his loss over the cashing in of his AMP policy when it was repeatedly raised with them. They are also concerned about the poor monitoring of the investment by the Public Trustee.  There are also concerns that the Public Trustee failed to act on this issue during the period in which they were negotiating the separation agreement with BB.  An email sent to Louisa Ghannoum of the Public Trustee from Mr Turner on 14 December 2009 identifies a list of items BS and his mother indicated were missing on a visit to the property the previous Friday. These items were: “All carpets need replacing and the walls require painting. All the window blinds are broken and need replacing, there is a broken window and a door with a hole in it. The yards are a complete mess and have not been tendered to in some time.” [13] On 27 September 2010, the Public Trustee provided a report to the Tribunal in response to Mr Turner’s letter of July 2010. This is summarised below:  The Public Trustee property department advised the SS family that an appraisal of the vehicles could not be conducted at the house at Walloon as both vehicles needed to be removed from the house in order to have them appraised. At this point BL indicated that if the value came in too low he was interested in purchasing the items himself. Subsequently BL advised he would purchase the vehicles himself. BL submitted a written offer to purchase the vehicles. This offer was accepted and BL was informed that prior to taking possession of the vehicles, he needed to arrange payment. After several reminder emails BL made the payment. Delivery was arranged shortly thereafter.  The Official Solicitor engaged a family law expert and accredited specialist, Mr Peter Sheehy to represent BS with respect to the matrimonial property settlement. Phillipa Kingswell from Peter Sheehy Solicitor liaised closely with members of BS’s family in order to reach an agreement with BB. Formal instructions were provided by the Public Trustee.  It is usual in family law matters that where there is a shared residence one party will remain in the property until such time as an agreement is in place which would enable them to move residences. BB’s solicitors sought assurances from the Public Trustee that BB and the children could remain in the property until a separation -- 7 of 28 -- 8 agreement was finalised. BB moved out of the matrimonial home in accordance with the terms of the separation agreement.  The Public Trustee had no indication prior to the separation agreement being entered into that the arrangement for BB to remain in the property was anything less than amicable. There was no specific clauses included in the agreement that BB was not to remove property from the house and that she was required to leave the property in an acceptable state however there does not appear to have been any concerns raised prior to the execution of the agreement that BB may cause significant damage to the property and/or take from the house items that were not her “personal property” as referred to in clauses 3.4 and 4.3 of the agreement.  The amounts payable to BB under the agreement cannot be set-off against the value of the items that were removed by BB on her leaving the property. The payment of $10,000.00 was made to her in accordance with the terms of the agreement and a further $15,000.00 remains payable within 30 days of the sale of the property. While it is unfortunate that BB has taken items which appear not to fall into the category of “personal property” it was not overtly apparent that such a situation would occur and that special clauses would need to be inserted into the agreement to dissuade such actions.  The settlement agreement is quite favourable to BS.  An initial property inspection was conducted in 2006 and then annually thereafter. The property inspector’s view is that the property has undergone deterioration in line with normal wear and tear over the last 3 years since the Public Trustee’s appointment.  Our records indicate that no telephone accounts were paid during BS’s unoccupancy. Our records also indicate that only 1 electricity account was paid during BS’s non-residence and this account was the finalisation of the account up to the date of BS’s exit from the property being October 2008.  The SS family agreed that the spending of further funds on the property would not increase the market value. The Public Trustee is awaiting advice from BL in relation to the listing of this property, which on valuations should be marketed for $360,000 and not sold for less than $340,000.  The Public Trustee sought independent professional valuations of the truck and trailer prior to their sale. A prospective buyer did approach BB, who subsequently referred the buyer to this office; however this sale fell through. Subsequently the truck and trailer were sold after receiving advice from an agent specializing in truck and trailer utes. -- 8 of 28 -- 9  The Public Trustee has now been advised by AMP that they will not compensate BS for the loss of his investment. AMP indicated that BS was not disadvantaged as he obtained the money and spent it.  In light of this information, the Public Trustee can still have the matter referred to the Official Solicitor; however consideration must be given to the additional legal costs which will be incurred. These costs may outweigh the benefits gained by BS. The application for compensation [14] On 10 September 2010, the Tribunal received an application from Mr Turner, seeking compensation from the Public Trustee. His reasons for seeking an order for compensation were outlined in his application as follows: BS and his family are seeking for the Tribunal to make a decision with respect to appropriate compensation from the Public Trustee of Queensland for BS. BS and his family are of the belief that the actions and inactions of the Public Trustee of Queensland, during the time in which they have been BS’s appointed administrator, have resulted in significant financial loss and hardship for BS. The concerns of BS and his family are clearly documented in a letter to the tribunal by Ben Turner dated 15th July 2010. To enable all parties to move forward, BS and his family are seeking for the Tribunal to make a compensation decision in relation to the unresolved matters between BS and the Public Trustee of Queensland. [15] The Tribunal conducted a compulsory conference on 23 November 2010, the purposes for which were: a. To identify and clarify the issues in dispute in the proceeding b. To promote a settlement of the dispute the subject of the proceeding c. To identify the questions of fact and law to be decided by the tribunal d. If the proceeding is not settled, to make orders and give directions about the conduct of the proceeding e. To give orders and make directions the person presiding over the conference considers appropriate to resolve the dispute the subject of the proceeding. [16] The conference failed to resolve any issues and the matter was set down for hearing on 14 February 2011. Due to the consequences for the SS family of the floods, the application was rescheduled for hearing in Ipswich on 28 March 2011. The Hearing Preliminary Matters [17] The Official Solicitor through Ms Jennifer Waldron sought leave to represent the Public Trustee of Queensland and Ms Patricia Feeney of counsel sought leave to represent the applicant, Ben Turner. The Tribunal -- 9 of 28 -- 10 considered it would be in the interests of justice for this to occur and leave was granted. [18] Ms Feeney advised the Tribunal that Queensland Health for whom Ben Turner worked, was advised late in the previous week by the Official Solicitor, about the application. [19] She submitted this application constituted a serious conflict of interest and it was inappropriate for one area of government to be bringing an application of this type against another area of government. [20] She was seeking leave for Mr Turner to withdraw his application. [21] The Public Trustee of Queensland did not object to her proposal that BS’s brother, BL become the applicant. He was agreeable to this. [22] The Tribunal granted leave to Mr Turner to withdraw his application verbally and accepted a verbal application from BL seeking an order for compensation. In this regard the Tribunal invoked section 115 of the Guardianship and Administration Act 2000 (the Act) and section 61 of the Queensland Civil and Administrative Tribunal Act 2009. BL's application was made under section 59 of the Act. [23] Those preliminary matters are the subject of reasons for decisions as is a decision not to allow further evidence following the hearing of 28 March but to allow the parties to provide further submissions and to determine the matters without further hearing. Those reasons should be read in conjunction with these reasons. Parties involved [24] Parties present and participating in the hearing were Mr Ben Turner, Mr Peter Carne, the Public Trustee of Queensland, Ms Monika McKay, Senior Trust Officer, BL and BS. The issues and the legislation [25] The relevant legislation that applies to this matter is section 59 of the Act. This is reproduced below: 59 Compensation for failure to comply (1) A guardian or administrator for an adult (an appointee) may be ordered by the tribunal or a court to compensate the adult (or, if the adult has died, the adult’s estate) for a loss caused by the appointee’s failure to comply with this Act in the exercise of a power. (2) Subsection (1) applies even if the appointee is convicted of an offence in relation to the appointee’s failure. (3) If the adult or appointee has died, the application for compensation must be made to the tribunal or a court within 6 months after the death. (4) If the adult and appointee have died, the application for compensation must be made to the tribunal or a court within 6 months after the first death. (5) The tribunal or a court may extend the application time. -- 10 of 28 -- 11 (6) If security has been given under section 19 and the tribunal or a court makes an order for compensation under this section, the tribunal or court may also order that the security be applied in satisfaction of the order for compensation. (7) Compensation paid under a tribunal or court order must be taken into account in assessing damages in a later civil proceeding in relation to the appointee’s exercise of the power. (8) In this section— Court means any court. [26] This means that, in order to award compensation, the Tribunal must find BS has suffered a loss because the Public Trustee has failed to comply with the Act when acting as administrator. [27] The powers of an administrator are outlined in section 33 of the Act. Subsection 2 provides that: Unless the tribunal orders otherwise, an administrator is authorised to do, in accordance with the terms of the administrator’s appointment, anything in relation to a financial matter that the adult could have done if the adult had capacity for the matter when the power is exercised. [28] Section 34 requires an administrator to apply the general principles outlined in schedule 1 of the Act. [29] Schedule 2 of the Act outlines in part 1 the definition of financial matter and gives a list of examples of what financial matters are. This includes a legal matter relating to the adult’s financial or property matters. [30] Section 35 of the Act provides that an administrator must act honestly and with reasonable diligence to protect the adult’s interests. [31] There is no suggestion that the Public Trustee has not acted honestly. The matters raised by the applicant, in the Tribunal’s view, go to the issue of whether reasonable diligence has been exercised. [32] What is reasonable depends on the circumstances. [33] The essential matters to examine as to whether the Public Trustee was reasonably diligent appear to the Tribunal to be crystallised as follows: Was the Public Trustee reasonably diligent in:  Managing BS’s AMP policy;  Instructing solicitors in respect of a property settlement with his ex partner;  Protecting and dealing with BS’s personal property and chattels at the former matrimonial home;  Protecting and maintaining the property at Walloon. Initial submissions of the Public Trustee [34] At the commencement of the hearing the Public Trustee provided a written submission. This is summarized below: -- 11 of 28 -- 12  The original applicant Ben Turner failed to quantify his claim, making it difficult for the Public Trustee to respond to claims against him.  Should Ben Turner seek leave to withdraw, the Public Trustee wants the Tribunal to hear the application pursuant to section 59.  The Public Trustee’s analysis of the claim indicates a claim is being made for: o $28,000 paid by AMP to BS; o Amount paid to BB; o Payment of monies to Peter Sheehy; o Ownership of chattels; o The non-inclusion of specific clauses in separation agreement; o Monies spend on the property clean up.  In respect of the $28,000 the Public Trustee outlined the various steps taken including: o On 31 October 2009 providing AMP with a copy of his authority asking AMP to amend their records; o AMP report yearly so the Public Trustee would not get a report from them until 30 June 2007; o The funds were withdrawn between Dec 06 and Feb 07 into a joint bank account between BS and BB such account being unknown to the Public Trustee; o Since obtaining advice from AMP that they would not pay the Public Trustee the funds withdrawn as BS had received the benefits of these funds, the Official Solicitor has made a demand on AMP and are awaiting final response.  In respect of the amounts paid to BB the Public Trustee submitted that prior to the separation agreement issues considered included: o Paternity issues; o Identification of BB’s personal property; o Obtaining an inventory of personal and matrimonial property; o BB’s provision of both financial and non financial contribution; o BB initially wishing 100% of the matrimonial pool, but settling for 7% to be paid in 2 tranches one of $10,000 upon removing herself and her 2 children from the property and $15,000 after the sale of the property.  In regard to fees paid, the Public Trustee submitted that: o Mr Sheehy was required to examine and advise on a range of matters; o His fees were based on the Family Court Scale and his charges for outlays; o The fees were reasonable.  With respect to the chattels the Public Trustee submitted: o It is difficult to determine what each party brought to the relationship; -- 12 of 28 -- 13 o The issue of the missing chattels could be referred to the Queensland Police Service as stolen property; o The Public Trustee has not been able to obtain receipts for chattels of BS prior to entering the relationship with BB; o No funds were expended to acquire matrimonial property from the Public Trustee’s appointment until 15 October 2008, the date of separation; o An inventory of matrimonial property was attempted on 2 July 2009; o The Public Trustee has been unable to ascertain what was actually taken but has photographic evidence of what was left; o Apart from a motor vehicle and jet ski, most of the chattels realized little return; o BS advised the Public Trustee officers in a 1:1 interview that all that was missing was: - 3 beds (presumably these include two beds for the infant children) - 3 televisions - Various cupboards and cabinets - 2 door refrigerator - Microwave - A lounge - Dining Table.  With regard to the non inclusion of specific clauses in the separation agreement the Public Trustee submitted: o The division of property was determined “in globo”; o The agreement is not a tenancy agreement and is not used to determine the responsibilities of parties to clean up a dwelling; o It is not mandatory for a separation agreement to include division of chattels; o Ms Kingswell who performed the work in Mr Sheehy’s office has declared in a statutory declaration “There was no division of chattels or collection of BS’s personal items was not raised with me during the process of finalising the terms of the agreement.”  In relation to the condition of the Walloon property the Public Trustee had this to say: o Little maintenance was undertaken on the property; o The Public Trustee’s policy provides for annual assessments. The 2006 report considers the house “was not in perfect condition” and subsequent inspections noted its condition consistent with wear and tear; o The Public Trustee paid approximately $3,500 in repairs and maintenance to prepare the property for sale; o The 2009 property officer’s report recommended against spending funds on renovations or major repairs apart from plumbing, yard maintenance and rubbish removal. [35] On all counts the Public Trustee submitted there were no grounds for compensation against the Public Trustee. -- 13 of 28 -- 14 Evidence and submissions at the hearing [36] BL advised the Tribunal that the Ben Turner letters are the views of the family. He advised he was seeking compensation in respect of the assets squandered when BB left 2 Harwoods Rd, Walloon. Property at the house [37] BL advised that all the items in the home were BS's. He stated there were beds, fridges and microwaves. He referred also to household effects missing including plates, bowls, cups, saucers, cutlery, 2 lounges, 3 television sets and 3 beds, as well as general furniture such as coffee tables, lamps, CD racks, sound system and a washing machine. [38] Additionally he told the Tribunal that an XR250 motorcycle worth between $2,500 and $3,000 went missing as well as a lot of Sidchrome tools. [39] BL was unable to put a figure on these items but referred to furnishing a 3 bedroom property as costing somewhere between $14,000 to $17,000. He advised the Tribunal he knew this from his work as a real estate agent. [40] BL advised the Tribunal that in 2003 when BS moved in, the house was set up with new contents. [41] In response to photographs provided by the Public Trustee, BL noted that the images were photographs of items that BS had brought up from NSW in a container. These he said, were broken items. Damage to Walloon property [42] BL advised he was also seeking compensation in respect of the damage to the property and it would cost between $20,000 to $25,000 to get the property back to standard because the breakages and abuse of the property. BL considered the Public Trustee didn’t manage the asset correctly. He advised the Tribunal that his mother voiced concerns to the Public Trustee about what was happening at the house. AMP Policy [43] Ms Waldron advised the Tribunal that following the Public Trustee’s advice to AMP of their appointment in July 2006, a letter dated 21 March 2007 to AMP requested redemption of funds. It was not until 8 August 2007 that the Public Trustee discovered there was no funds remaining. Ms Waldron could find no subsequent correspondence from the Public Trustee until March 2010 following up this loss. Mr Carne and Ms Waldron referred the Tribunal to correspondence between the Public Trustee and AMP regarding recovery. In June 2010 the AMP finalised their position that they would not provide reimbursement and the Public Trustee responded in July 2010. The Official Solicitor was instructed in December 2010. -- 14 of 28 -- 15 [44] Mr Carne argued that there has yet to be a loss as the Public Trustee are continuing to pursue AMP and a recent decision in the Court of Appeal may assist in the recovery putting BS in a stronger position. Vehicle and Jet ski [45] In relation to the jet ski and a vehicle being moved to Zillmere, Ms McKay advised the Tribunal that these items had been moved in preparation for auction, prior to the Public Trustee accepting an offer from BL to buy. BL stated he was not aware the items had been moved. Utilities [46] Mr McKay further advised the Tribunal that the Public Trustee had not paid utilities for any period after which BS had left the premises. The last payment made for utilities was for a period when BS was living in the house for part of the period. The separation agreement and chattels [47] Ms Waldron advised the Tribunal that there were early discussions about chattels in respect of the property settlement that became difficult when receipts were unavailable and an inventory was unable to be completed. [48] She further advised that Mr Sheehy’s advice was that it wasn’t mandatory to include these items and it would have held up the settlement. [49] Ms Waldron advised the Tribunal that the 7% settlement was in respect of that percentage of identified property, being the house, the jet ski, and monies in the bank but not chattels. [50] Mr Carne suggested to the Tribunal that the assets involved here are only minimal value. [51] Ms Waldron advised the Tribunal that advice from Ms Kingswell was that BB would be entitled to a lot more if the matter went to court. [52] Mr Carne referred the Tribunal to clause 5.3 of the separation agreement which provided: “That apart from property and financial resources dealt with above, each party retain without claim from the other the ownership in any other personal property or financial resources under their custody, control or in their possession.” [53] Mr Carne noted that he understood BB had some items of chattels in her possession, power and control but advised there wasn’t a determination as to who owned what. He referred to BB not allowing the Public Trustee access to the property to do an inventory. [54] BL advised the Tribunal that prior to the agreement being finalised he had a discussion with Wes Barry, a solicitor with the Public Trustee about his -- 15 of 28 -- 16 concern BB would take everything with her when she left. BL advised the Tribunal that Mr Barry also had grave concerns about this. [55] BL also advised that his mother expressed concerns to the Public Trustee office in Ipswich about BB taking or destroying BS’s personal property. [56] Ms Waldron advised the Tribunal that these warnings were passed on to Ms Kingswell and that on 17 April 2009 Ms Kingswell met with Ben Turner and BS. The inventory [57] Mr Turner advised the Tribunal he was present at the Walloon property when the Public Trustee officer prepared the inventory. Also present was BS and BB. He outlined the process as follows: ▪ BB allowed the 3 visitors entry to the home; ▪ The property inspector went through the 3 bedroom home and some of the garage with BS identifying what were his items and what were not; ▪ The inspector was able to do the 3 bedrooms, the living area and one of the double garages; ▪ A dispute arose and BB would not allow entry to the second double garage; ▪ The inspector wrote down the assets that BS said were his. [58] The inventory of 2 July 2009 was subsequently provided to the Tribunal. [59] Ms Waldron advised the Tribunal that Ms Kingswell was aware that the partial inventory existed. [60] Whilst the Public Trustee officers were unable to give a clear indication to the Tribunal about the reason for conducting the inventory, Ben Turner advised that the inspection was organised by the Public Trustee in response to the repeated concerns raised by BS and his family concerning the condition of the property and the loss of his assets. [61] Mr Carne advised the Tribunal that if there is notice that a party may abscond with assets there is nothing that can be done until the offence has occurred and that no offence occurred during the period up to settlement. [62] Mr Carne noted that the Public Trustee first became aware of missing items on 11 December 2009 and indicated that the Public Trustee still had courses available to him including referral to the Police or reopening the matter in the Family Court. [63] Ms Waldron provided the Tribunal with a list of items sold from the property and photographs of some items left at the property. [64] A number of items on the inventory were marked with a question mark. These include a chainsaw, tool box, grinders, drills, mulcher, outdoor setting, CDs and DVDs, an evaporative air cooler. -- 16 of 28 -- 17 [65] Ms Waldron advised these items could not be identified from the photographs. [66] She advised the Tribunal that there were other items missing including a refrigerator, lounge suit and washing machine. [67] She noted that there were some further items BS claimed were missing identified in paragraph 3 of the initial submissions. These are listed at paragraph 34 of these reasons. Submissions [68] Towards the conclusion of the hearing the Tribunal invited the parties to make final oral submissions. [69] Mr Carne submitted the matter should be adjourned for further oral evidence to be produced in respect of the following:  The Public Trustee’s management and in particular more evidence about what chattels were in the property;  How these were handled;  What were removed and their value;  More evidence about the property settlement and the avenues of compensation available to BS if BB should not have taken items;  Steps taken by the Public Trustee to protect assets;  The Public Trustee’s duty; and  What options were available to the Public Trustee once he was put on notice that BS’s personal property was at risk. [70] A number of these matters had been canvassed during the hearing. [71] One of the objects of the QCAT Act is to: ensure proceedings are conducted in an informal way that minimises costs to parties, and is as quick as is consistent with achieving justice. [72] The conduct of hearings is governed by section 28 of the QCAT Act. Section 28(3) outlines matters the Tribunal must take into account. These are reproduced below: (3) In conducting a proceeding, the tribunal— (a) must observe the rules of natural justice; and (b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and (c) may inform itself in any way it considers appropriate; and (d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and -- 17 of 28 -- 18 (e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. [73] The Tribunal being mindful of the objects of the Act and section 28 considered:  The volume of relevant material before the Tribunal;  The length of time that has elapsed since the family first started raising concerns about the Public Trustee;  The length of time the parties have had to prepare for this hearing;  The time spent at the hearing receiving evidence and submissions. It determined that there should not be a further oral hearing and that any further material should be put before the Tribunal by written submissions, with each party having the further opportunity for final comment on each other’s submissions. The parties agreed with this approach. [74] The Public Trustee provided extensive submissions received by the tribunal on 20 May 2011. No submissions were received from BL. A registry officer telephoned BL who advised he had sent material to the Tribunal prior to Easter. The Public Trustee received nothing also. BL was verbally advised to resend these. [75] When nothing arrived BL was contacted by letter, telephone message and email about his submission. As at 5 July 2010 no material was received. The Public Trustee’s final submissions [76] The Public Trustee submits that the application for compensation be dismissed as the applicant has failed to particularise the loss and bring any evidence in support of the application. These submissions will be expanded on later. [77] In the first instance the Public Trustee claims that the Tribunal has failed to afford procedural fairness. He submits that the Public Trustee attended the hearing on 28 March 2011 in the belief that it was a directions hearing as was identified in the application. [78] The Public Trustee argues that “this put the Public Trustee at a distinct disadvantage as it was not in a position to properly present its case and bring evidence to refute the assertions made against it.” [79] The Public Trustee submits that it cannot respond to a claim for compensation where the applicant fails to identify and particularise the loss. It is argued that a general complaint of the type contained in the application is not sufficient. [80] The Public Trustee asserts that an analysis of the hearing transcript discloses no evidence or insufficient evidence to prove loss. -- 18 of 28 -- 19 [81] On the contrary the Public Trustee argues that the material provided to the Tribunal and the separation agreement demonstrates that the Public Trustee protected and maintained BS’s financial affairs. [82] On the separation agreement the Public Trustee submitted: ▪ Peter Sheehy Solicitors were chosen because they represented the best possible source of advice in this matter; ▪ Ms Kingswell of that firm had discussions with BS, his family and Ben Turner about his property; ▪ At no time was Ms Kingswell provided with any information about chattels or personal items belonging to BS and the division of chattels or collection of personal items were not discussed with her; ▪ BB's continued residence at the Walloon property was consistent with the advice provided to the Public Trustee by Ms Kingswell; ▪ The final agreement result in a settlement in favour of BS of 93% of the asset pool while BB was entitled to 7%; ▪ An “in globo” approach was adopted with respect to the division of the matrimonial pool. Chattels at the Walloon property [83] The Public Trustee submits the following in relation to the chattels: ▪ The applicant has failed to demonstrate what property has been lost; ▪ BS has itemized missing items to the Public Trustee; ▪ BS assisted BB to bring her personal belongings to the Walloon property and it is unclear who owned what personal property; ▪ The Public Trustee purchased no items for the matrimonial home; ▪ Ms Retschlag from the Public Trustee’s Office telephoned BB on 30 March 2011 and BB stated she took what was hers and left BS’s property; ▪ Photographs taken at the property on 9 December 2009 after BB vacated show a variety of furniture and other items which were secured at the property; ▪ These items were subsequently sold or stored until BS’s family took custody of them; ▪ There is no case to answer with respect to missing property and the Public Trustee has acted honestly and with reasonable diligence at all material times in its job as administrator for BS. The evidentiary test [84] The Public Trustee submits the correct test to be applied to the evidence is that outlined in Briginshaw v Briginshaw. [85] The Public Trustee submits that the onus falls on the applicant to quantify the loss and then to bring proof of the alleged action or omission that caused the loss. -- 19 of 28 -- 20 [86] The Public Trustee referred the Tribunal to the case of WCD in the former Guardianship and Administration Tribunal whereby the Tribunal undertook a detailed examination of the loss claimed. [87] In referring to HLB v Trust Company Ltd, the submission made by the Public Trustee is that the Tribunal made findings against the administrator on the basis that the prudent person rule as set out in the Trust Act 1973 had not been followed by the administrator. [88] The Public Trustee submitted that a thorough examination of the evidence in this matter clearly demonstrates the Public Trustee exercised its judgment in a prudent and thoughtful manner and has acted in a manner consistent with the Guardianship and Administration Act 2000. The Tribunal’s view [89] In his submissions the Public Trustee raised as a preliminary issue that the approach of the Tribunal “fails to afford procedural fairness”. The basis for this assertion seems to be that he attended the hearing on 28 March 2011 in the belief it was a directions hearing and the Tribunal “progressed to a hearing of the substantive issues” and “this put the Public Trustee at a distinct disadvantage as it was not in a position to properly present its case and bring evidence to refute the assertions made against it.” [90] The Tribunal completely rejects these assertions for the following nine reasons: a) The miscellaneous application form was used by Ben Turner for his application. He ticked a box on the front applying for advice, directions or recommendations. There is no specific form or box for compensation applications. In the section why are you seeking this order?, Ben Turner opens with the statement, “BS and his family are seeking for the Tribunal to make a decision with respect to appropriate compensation from the Public Trustee of Queensland for BS”. b) The notice of hearing dated 1 February 2011 clearly showed the matter to be heard as GAA7264-10 application for compensation order. c) Tavis Watson, an officer of the Public Trustee inspected the file on 22 March 2011, in preparation for the hearing. d) In what the Tribunal regards as unprecedented, the Public Trustee himself, Peter Carne attended the hearing, suggesting that he regarded this matter as extremely serious. e) The Public Trustee also had in attendance a senior trust officer, Ms M McKay and the acting manager of the Ipswich Office, Ms K Retschlag -- 20 of 28 -- 21 f) Mr Carne, at the outset of the hearing advised that his position was that the matter is before the Tribunal, he wanted the matter fully agitated and wants the matter determined. g) Ms Beck, a senior case officer at the Tribunal registry communicated to Ms McKay via email on 27 September 2010 that the Tribunal had received an application for an order for compensation against the Public Trustee. h) A 3 hour compulsory conference was held on 23 November 2011 regarding the application for compensation. This failed to resolve the matter. Ms Retschlag and Ms McKay were in attendance. i) The Public Trustee’s initial submissions prepared in advance of the hearing and referred to in paragraphs 34 of these reasons contain an analysis of the claim for compensation. [91] The statement at paragraph 10 of the submission that the Public Trustee attended the hearing on 28 March 2011 in the belief that it was a directions hearing as was identified in the application lacks all credibility. AMP Policy [92] The Tribunal is satisfied that the Public Trustee was pursuing the AMP in an appropriate manner in respect of the $28,000 that was taken from the account. [93] The Tribunal considers that, on the available evidence, the Public Trustee has been tardy in its efforts in recovering the funds, given that there was no apparent correspondence on this matter from 8 August 2007 until March 2010. The Tribunal is also concerned that the disappearance of the $28,000 may not have been raised during the discussions between the Public Trustee and Ms Kingswell. This is not referred to in any of the Public Trustee’s submissions about the $28,000 or in Ms Kingswell’s affidavit. [94] The Tribunal does not find that the Public Trustee contributed towards the events leading to the funds being withdrawn and used. The Public Trustee properly advised AMP about its authority. [95] The Tribunal accepts the Public Trustee’s evidence on this matter. [96] Unfortunately the AMP over looked the notice of authority and released the funds without appropriate authorisation into a joint bank account of BS and BB. These funds were all withdrawn and apart from the $5,000 referred to in a letter from Mr Berry, BB’s former lawyer, what happened to these funds remains unknown. [97] The Public Trustee cannot be held responsible. The Public Trustee when first alerted in August 2007 to a withdrawal from the AMP, sought to withdraw the balance of the funds. There is no case for compensation in -- 21 of 28 -- 22 respect to this aspect of the Public Trustee’s administration. Since the hearing the Public Trustee have advised that AMP will make good the loss. Vehicle and Jet ski [98] The applicant suggested that the Public Trustee moved these items to its Zillmere auction facility after the Public Trustee accepted an offer from him to buy them, thus incurring additional costs to BS. [99] The Tribunal is satisfied that this was not the case and that the 2 items were relocated for both valuation and security reasons. [100] The Tribunal finds there are no grounds for compensation as no loss was suffered. Utilities [101] One of Ben Turner’s letters suggests that the Public Trustee paid for utilities such as phone and power at the Walloon property at a time when he was not there. [102] Evidence from Ms McKay accepted by the Tribunal and unchallenged by the applicant, is that the Public Trustee paid only for periods during which BS was residing at the property. Condition of property and damage done to the property [103] The Tribunal accepts the Public Trustee’s submission that little maintenance was done to the property. The Public Trustee property officer did not recommend renovation or repairs other than essential matters. [104] The Public Trustee has spent around $3,500 to prepare the property for sale. [105] The Tribunal has examined the various property inspection reports from October 2006, October 2007 and September 2009. [106] The 2006 and 2007 reports show most aspects of the property in good or reasonable condition whereas the bedrooms and kitchen were described as grubby in the 2009 report. The email sent to the Public Trustee’s Ms Ghannoum by Ben Turner on 14 December 2009 also referred to property damage noting: “All carpets need replacing and the walls require painting. All the window blinds are broken and need replacing, there is a broken window and a door with a hole in it. The yards are a complete mess and have not been tendered to in some time.” [107] The Tribunal accepts the property was not looked after well. The Tribunal notes that at various times some family and associates of BB occupied part of the property with BB. -- 22 of 28 -- 23 [108] The Tribunal is satisfied that the property was left in a poor condition. However, the Tribunal does not consider the Public Trustee neglected his duties. The Public Trustee inspected the property annually and completed reports and necessary important maintenance. [109] The Public Trustee cannot be held responsible for how BB left the property. [110] The Tribunal accepts the submission of the Public Trustee that BB's settlement sum cannot be reduced to effect repairs. The inventory, missing items and the separation agreement [111] The Hon Tim Carmody SC has provided a memorandum of advice to the Public Trustee as to whether there is any actionable fault arising out of the terms and execution of the separation agreement or otherwise. [112] The Tribunal wishes to comment on some elements of this advice. [113] At paragraph 18 he notes that Ms Kingswell says an itemized list never materialised despite repeated requests. The Tribunal can find no statement in Ms Kingswell’s affidavit swearing to repeated requests. The Tribunal has indicated earlier that it is the Public Trustee who should have provided relevant documents in this regard to Ms Kingswell. [114] At paragraph 27 Mr Carmody refers to serious disagreement about whether concerns were raised by the adult or his family about the partner’s trustworthiness prior to the execution of the agreement and the need for precautionary measures. Mr Carmody does not elaborate regarding who was in disagreement. There was unchallenged evidence at the Tribunal, indeed supported by Public Trustee property officer, that BB was “going to take the lot”. [115] Mr Carmody argues that proof of wrong doing against BB is indispensable to the success of the compensation claim. The Tribunal does not accept this argument. There are missing items. No one knows who took them. BB may have, but in the belief she could under the agreement. The Public Trustee did not have BS’s non significant property listed in a schedule to the agreement despite knowing his possessions could be at risk. Nor did the Public Trustee seek to remove his property prior to the agreement being reached. The Tribunal also notes that the photographs taken in December 2009 are, in the main, not of usual household items. [116] The Tribunal notes with interest Mr Carmody’s comment in relation to the separation agreement that “what the family thought or expected to be in the document is beside the point. It is what the adult understood and told Ms Kingswell he wanted or didn’t care one way or the other about, that is important.” [117] BS is a man with an acquired brain injury whom this Tribunal found lacked capacity for decision making for his personal and financial affairs. This property agreement is not straightforward. BS’s view should be listened to, -- 23 of 28 -- 24 but it was for the Public Trustee to determine what was important in the agreement. [118] Finally, Mr Carmody opines that the only possible criticism that the Public Trustee might be open to is signing the agreement without ensuring the contents were adequately protected, if the Public Trustee knew or should have known about the adult’s concern for their safety or that BB represented an unacceptable risk. [119] BL submitted at the hearing that the Public Trustee should pay for a refit of a house with new chattels in an amount between $14,000 and $17,000. The Tribunal does not agree with this. BL has not given the Tribunal a comprehensive list of missing items or the value of these. This was not supplied by Ben Turner either. It has been the process of the hearing that has revealed the missing items. [120] The Tribunal can only award compensation in respect of what has been identified as having been lost. [121] An inspector from the Public Trustee visited the Walloon property on 2 July 2009 to prepare an inventory of BS’s property. The Public Trustee was unable to give a clear explanation as to why this was being conducted. The Tribunal accepts the unchallenged evidence from Ben Turner that the inspection was organised by the Public Trustee in response to the repeated concerns of the family regarding the condition of the property and the loss of his assets. [122] The Tribunal accepts that the inventory was completed apart from items in a double garage. [123] From the evidence in respect of the inventory, and subsequent photographs, the Tribunal has concluded that the following items are missing:  Ohio forge bench grinder;  Solo chain saw;  Tool box;  Old drills;  Grinder;  R G Mulcher;  Outdoor setting Evaporative air cooler;  Clothes;  CDs and DVDs. These items had not been identified by the Public Trustee as having been sold. [124] Other items that the Tribunal accepts were missing on Ms Waldron’s evidence are: ▪ Lounge suite; ▪ Washing machine. -- 24 of 28 -- 25 While she mentioned a refrigerator, the photographs show one in the garage. [125] BS had previously advised the Public Trustee about the additional missing items as indicated earlier. Some of these items are included in the above lists. [126] Evidence was also given that an XR250 bike belonging to BS went missing from the property. [127] The question for the Tribunal is whether BS should be paid compensation for some or all of these items because of any failure on the part of the Public Trustee. [128] Mr Tipping, a property officer with the Public Trustee provided an affidavit as part of the Public Trustee post hearing submissions. He attached various photos which he says he took on 9 December 2009. He prepared the inventory on 2 July 2009. He states he was in the house less than one minute and observed a number of items from both inside and through a window. The only qualification on his inventory report was that he could not gain access to the 2 car garage. It does not make reference to the short time in the house. [129] He recalls BB saying repeatedly she was taking the chattels and was taking the lot. [130] On his visit of 9 December 2009 he states all the remaining chattels had been removed to the garage. These he photographed. According to Lyal Rogers, another property inspector, the house had been cleared of its contents by 21 September 2009. [131] The photographs used by Ms Waldron to identify missing property are those taken by Mr Tipping. [132] Taking all these events into account it is reasonable to assume that all household furniture, crockery, cutlery and other effects were removed by BB and nothing was left for BS. [133] The Tribunal is satisfied that the separation agreement was favourable to BS in respect of the percentages of the significant assets and liabilities. [134] The Tribunal does have concerns about the agreement to the extent it is silent on the issue of non significant property. [135] These concerns arise because of the following: ▪ The Public Trustee was alerted to concerns of the family regarding the prospect of BB taking BS’s property; -- 25 of 28 -- 26 ▪ According to Ms Kingswell, the division of chattels or collection of BS’s personal items was not raised with her by anyone. This includes the Public Trustee; ▪ The Public Trustee had a partial inventory of BS’s property and apparently did not forward it to Ms Kingswell for her consideration, because she states in an affidavit that she was not provided with any information about chattels or personal items belonging to BS; ▪ Ms Kingswell was aware of the inventory according to Ms Waldron and obviously did not ask for it; ▪ Ms Kingswell was written to on 6 May 2009 by Ian Berry, then BB's solicitor, advising her that: “The $8,000 was received by BS from an investment, and the money was banked into a joint Commonwealth Bank of Australia account at the Ipswich Branch, from which BS withdrew $5,000,000 which was spent on household goods. The Public Trustee had control of BS’s affairs at that time.” ▪ The funds for household goods were spent, therefore, around December 2006, contrary to the Public Trustee's assertions in his initial submissions at paragraph 3(v) that no funds had been spent to acquire matrimonial property in the period between the Public Trustee’s appointment and 15 October 2008 when Walker Lawyers advised of the separation. It is accepted that the Public Trustee was not responsible for the spending of these funds; ▪ The agreement did not provide for a schedule of non significant property owned by each party despite the Public Trustee knowing this was an area of contention, especially when BB advised on a number of occasions during the inventory visit that she was taking everything; ▪ BB's solicitor suggested to Ms Kingswell that her client (presumably BS) provide a list of items for collection. Ms Kingswell makes reference to this in an affidavit on 10 February 2011 but takes it no further. The Tribunal can only conclude no list was prepared and the obvious question in the circumstances is “why not?” ▪ The separation agreement provides that property in their custody, control or possession shall be retained by each party; ▪ The matters weighing on the Tribunal’s mind are: o The Public Trustee knew about the potential for BS’s property to go missing; o It did not provide an inventory to Ms Kingswell despite having one, albeit an incomplete one; o It did not instruct Ms Kingswell about BS’s personal property; -- 26 of 28 -- 27 o The separation agreement made no provision for chattels as personal property; o It signed off on an agreement which did not protect his personal property; o The Public Trustee did not alert Ms Kingswell to potential problems about personal property; o Property went missing and no one knows who took it. [136] The Public Trustee despite being alerted to the property missing in December 2009 has taken no action to recover it. [137] The Public Trustee argues the matter should be referred to the police or the Family Court. It has not sought to do so in 18 months. This is unacceptable and cannot be regarded as the actions of a diligent administrator. These options do not appear to have been raised previously. [138] The Tribunal disagrees with the statement in a letter dated 7 April 2011 from Ms Waldron “that even if BB had made claims that she was taking all of the household goods, the only recourse available to the Public Trustee would have been to seek either interim orders or an injunction from the Court". [139] The Tribunal considers that arrangements could have been made to collect BS’s property prior to the agreement being finalised as well as a schedule being placed in the separation agreement in respect of other items of his that were required to be left at the property for BB until she left eg furniture to allow BB and the children to reside there. [140] The Public Trustee as administrator is required to act as a prudent person of business would. The Public Trustee has had decades of experience in administering other people’s financial affairs. [141] The Tribunal considers that in the circumstances of this case exercising reasonable diligence and acting prudently would have necessitated action being taken by the administrator to provide greater protection for BS’s personal property. This could have been done in either of the ways suggested above in paragraph 137. [142] The Tribunal is of the view that the Public Trustee has not acted with reasonable diligence and that a compensation order should be made in respect of the below items identified throughout these reasons as unaccounted for. These include some items from a list given at the outset of the hearing by BL, items raised with the Public Trustee by BS, items raised by Ben Turner with Louisa Ghannoum, and items identified by Ms Waldron. The list is a composite list as some items were included by more than one person. The list does not include items on the lists that are identified in the photographs as still present. In this regard the Tribunal notes the items listed in the Public Trustee’s final submissions as having been photographed. -- 27 of 28 -- 28 [143] The list of unaccounted items for which compensation should be paid follows: ▪ Lounge suite; ▪ Washing machine; ▪ XR 250 motor bike; ▪ Chainsaw; ▪ Evaporative air cooler; ▪ Tool box; ▪ Grinders; ▪ Drills; ▪ Mulcher; ▪ CDs and DVD’s; ▪ Crockery and cutlery; ▪ Kitchen tables and chairs; ▪ Microwave; ▪ CD stacker; ▪ 3 wardrobes; ▪ Dressing table; ▪ Exercise bike; ▪ Treadmill; ▪ Sound system; ▪ Coffee table; ▪ Lamps. [144] The Tribunal has no information before it as to the age, brand and condition of the property. The amount of compensation should reflect the value of the items at December 2009. [145] It is not possible for the Tribunal to quantify the amount at this stage and will seek written submissions from the parties regarding the quantum that should be paid. The Tribunal will determine the amount of compensation on the basis of written submissions. The submissions should articulate the basis on which the estimate is arrived at and any assumptions made. [146] The Tribunal would be disappointed to find on a subsequent review of the Public Trustee’s appointment that the Public Trustee had charged BS for the considerable expense the Public Trustee has appeared to have gone to in order to defend this matter. -- 28 of 28 --