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CRG

 

[2020] QCAT 153

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

CRG [2020] QCAT 153

PARTIES:

In an application about matters concerning CRG

APPLICATION NO/S:

GAA611-16

MATTER TYPE:

Guardianship and administration matters for adults

DELIVERED ON:

12 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

The further application for compensation pursuant to section 59 of the Guardianship and Administration Act 2000 (Qld) is dismissed.

CATCHWORDS:

HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATION AND FINANCIAL MANAGEMENT – GENERALLY – application for compensation for failure to comply with the Guardianship and Administration Act 2000 (Qld) in the exercise of a power – whether duties were breached

Guardianship and Administration Act 2000 (Qld), s 59

CRG [2019] QCAT 168

REPRESENTATION:

Adult:

Matthew Jones, counsel, appointed as a separate representative for CRG and acting pro bono

Current Administrator:

Self-represented

Public Trustee:

Clinton Miles, Director of Disability Services

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    This is a further application by CRG for compensation to be paid by the Public Trustee under the Guardianship and Administration Act 2000 (Qld) (GAA).  By section 59 of that Act, the tribunal may order a guardian or administrator for an adult to compensate the adult for a loss caused by the appointee’s failure to comply with the GAA in the exercise of a power.
  2. [2]
    CRG was previously successful in a similar application concerning the making of a loan to his father.[1] 
  3. [3]
    The precise matters which are the subject of this further application for compensation, and therefore the issues which need to be determined by the tribunal, have not been identified in an order of the tribunal.  Instead, it was left to CRG’s current administrator to define them through submissions.
  4. [4]
    In those submissions, the application for compensation is as follows:[2] 
    1. (a)
      After being reappointed as CRG’s administrator on 12 December 2003, the Public Trustee failed to ‘investigate recovery action’ of the sum of $38,951.13 which the former administrators of CRG were alleged to have misappropriated from CRG’s funds.   A claim of that amount, plus interest since 2004 is made.  
    2. (b)
      By failing between 2000 and 2002 to organise a purchase of a residence for CRG with his funds, the Public Trustee deprived CRG of the benefits of home ownership.  A claim of $450,000 plus interest since 2000 is made.
    3. (c)
      By renting out a unit owned by CRG in June 2004, by selling a bush retreat owned by CRG in January 2005, and by selling the unit in June 2007, the Public Trustee deprived CRG of these assets which were valuable to him both personally and financially.  Claims of $160,000 plus interest since 4 January 2005, and $260,000 plus interest since 27 July 2007 are made.

Duties owed by the Public Trustee

  1. [5]
    In CRG [2019] QCAT 168, [13]-[43], I reviewed the Public Trustee’s duties with respect to the exercise of a power and with respect to investments, and I propose to follow the same principles in this decision.
  2. [6]
    Basically, section 59 of the GAA empowers the tribunal to compensate an adult for a loss caused by an administrator’s failure to comply with the GAA in the exercise of a power.  The GAA requires the administrator to act honestly and with reasonable diligence to protect the adult’s interests, to apply the General Principles, and to apply the prudent investment rule. 
  3. [7]
    The General Principles are largely concerned with achieving the balance set out in section 6 of the GAA, which include the recognition of the adult’s human worth and dignity as a valued member of society, empowerment to exercise basic human rights and the like.  This includes exercising the power in a way that is appropriate to the adult’s characteristics and needs, whilst taking into account the perceived views and wishes of the adult, and the importance of maintaining an adult’s existing supportive relationships. 
  4. [8]
    When making investments, a professional administrator must exercise the care, diligence and skill expected of a prudent person engaged in that profession.

Background facts

  1. [9]
    In December 2000 a court awarded CRG, who was then aged 18, the sum of $500,000 damages for personal injury suffered in a motor accident. The Public Trustee was appointed administrator of the award because of CRG’s lack of capacity. Pursuant to that order, on 21 February 2001 the Public Trustee received a sum of $463,921.
  2. [10]
    At the time this money was received, CRG was living in a hostel.  In the ensuing months CRG lived in various places.  Sometimes he was with his mother and her partner (who is the current administrator), sometimes with his uncle and aunt, or in a unit in West End, or in hostels in Brisbane.  It does appear that CRG was very unsettled at the time.
  3. [11]
    On 23 August 2002 CRG’s mother and his aunt applied to be joint administrators for CRG in place of the Public Trustee.  On 13 December 2002 the tribunal made an order to that effect.  The tribunal’s reasons were that although the Public Trustee had acted prudently and appropriately in the financial management of the fund, there had been a breakdown in the relationship between CRG’s mother and the Public Trustee which had delayed a decision about the purchase of a property for CRG, and that it was in CRG’s interests to appoint his mother and aunt instead.[3]  As a result of that order, CRG’s mother and aunt received CRG’s funds then held by the Public Trustee, being the sum of $390,873.42. 
  4. [12]
    As contemplated by the tribunal’s decision of 13 December 2002, on 22 July 2003 the joint administrators used part of CRG’s funds to purchase a unit in his name for $220,000.  The unit was on the Sunshine Coast.  Then on 5 September 2003 the joint administrators used part of his funds to purchase some vacant land in his name for $88,000.  This has been described as a ‘bush retreat’.  The idea has been stated to be that the unit was large enough for CRG to live there with his carers, and the bush retreat would have provided him with ‘cultural, lifestyle and healing opportunities, as well as a financial growth asset’.[4]
  5. [13]
    CRG’s mother and the current administrator, moved into the unit soon after its purchase, but CRG did not live there.[5] 
  6. [14]
    In his submissions in this application for compensation, the current administrator explains what happened at that time.  He says that he and CRG’s mother tried to encourage CRG to move to the unit with them but he insisted on staying in Brisbane; at the time he was sniffing petrol and he ended up in gaol.[6]  He says that in fact CRG never lived in the unit at all, nor did he ever live on the bush retreat.[7]
  7. [15]
    Instead, CRG lived on the streets from time to time in early 2003 and then lived in a hostel. He was in gaol for about six weeks and after his release in December 2003 he lived with his father and his father’s wife (his ‘stepmother’) in their rented home together with their other children.
  8. [16]
    On 12 December 2003 on an emergency interim basis the tribunal suspended the joint administrators.  On that date the Public Trustee was appointed as CRG’s administrator and this appointment was confirmed in an order of the tribunal on 8 April 2004.  The tribunal gave reasons for this.[8]  CRG’s mother and the current administrator had failed to pay rent on the unit despite being warned not to benefit, a number of items had been purchased and money expended which were not to CRG’s benefit, the joint administrators had not pursued a Centrelink pension for CRG, tribunal approval was not sought for the purchase of either of the properties because CRG was not living in either of them (as required by what was then section 52 of the GAA), there had been a failure to provide an updated management plan within three months of the purchase of any land as directed by the tribunal, the tribunal’s direction to account for the time as joint administrators had not been complied with and the joint administrators had not kept sufficient records.  There had been a payment of $31,016.96 legal fees from CRG’s money.  Also, there was a complete breakdown in the relationship between CRG’s mother and his aunt, who were the joint administrators.  The tribunal noted that CRG’s aunt stated that she disagreed with the purchase of the unit and the financial benefits derived from it, with the result that she wished to resign as administrator.[9]
  9. [17]
    CRG’s mother told the tribunal that CRG had not lived in the unit for more than a week.[10]
  10. [18]
    The sum of $31,016.96 in legal fees had been paid to lawyers who had represented CRG’s mother and his aunt in their successful attempt in the tribunal to become joint administrators for CRG on 13 December 2002.  The fees were higher than would usually be expected because the lawyers had been instructed by CRG’s mother and aunt on a ‘no win, no fee’ basis.
  11. [19]
    Overall, by 12 December 2003 the original amount of $390,873.42 transferred to CRG’s mother and his aunt had all been used up.  CRG’s assets now comprised the unit in which his mother and the current administrator were living without paying rent, and the bush retreat.
  12. [20]
    Following the Public Trustee’s reappointment, CRG’s mother and the current administrator were evicted from the unit.  The date when this occurred is unclear, but it appears to be late 2003 or in the first half of 2004.  The unit was then tenanted from June 2004 on a 12 month fixed term at a rent of $230 per week.[11]  It continued to be tenanted until its sale in 2007.
  13. [21]
    On 14 January 2005 the bush retreat was sold for $160,000, providing net sale proceeds of $153,501.74. 
  14. [22]
    At that time the Public Trustee was informed that CRG was living with his father, and so the Public Trustee started to pay CRG’s father $150 a fortnight for CRG’s board and lodging. 
  15. [23]
    The arrangements were still in place on 1 August 2005.  The Public Trustee was then holding a total of $381,793 for CRG, comprised of the unit which was rented out (said to be worth $240,000 at that time) and the remainder in cash, invested in a mixture of Public Trustee Investment Funds.
  16. [24]
    Between 2006 and about March or April 2007 CRG used his father’s accommodation as a base but also lived in the streets from time to time.[12]  The Public Trustee made payments to CRG’s father to maintain that accommodation for CRG.
  17. [25]
    The unit remained tenanted until about 24 March 2007.  On 8 June 2007 it was sold for $260,000, providing net proceeds of $247,355.19. 
  18. [26]
    Between about March or April 2007 and about July 2009 CRG was residing in hostels or on the streets or was in gaol, or at times he lived with his mother and the current administrator.[13]
  19. [27]
    From about July 2009 CRG started living with his mother and the current administrator in Brisbane on a permanent basis.[14]  The Public Trustee made payments from CRG’s funds to the current administrator.
  20. [28]
    On 9 September 2011 CRG’s funds were $188,133 in cash and cash investments, plus $15,499 in chattels.[15]
  21. [29]
    On 26 April 2017 the tribunal decided that the current administrator should replace the Public Trustee as administrator for CRG.  By that time the funds held by the Public Trustee had reduced to $87,000.[16]

Claim (a) 

  1. [30]
    This is a claim for $38,951.13 plus interest. This is made up of two amounts - $7,423.36 which was spent on vehicle expenses and $31,527.77 which was paid to solicitors as legal fees incurred when representing the mother and aunt in their successful application to replace the Public Trustee as administrator.
  2. [31]
    From many places in the initial submissions of the current administrator,[17] this claim was that the Public Trustee failed to try to recover $38,951.13 from the mother and aunt, and possibly from the solicitors, and possibly partly from himself.  Having responded to this claim, the Public Trustee submitted that the claim was a waste of the tribunal’s limited resources and that it should be dismissed with the current administrator being ordered to pay the costs.[18]  CRG’s separate representative also did not support the claim.[19]
  3. [32]
    This seems to be the reason why the basis of the claim was then changed completely.  It was then said in the current administrator’s submissions in reply:[20]

The Public Trustee’s submission, paragraph 10, misrepresents my claim as “.. the Public Trustee is liable for breach of duty …. for not recovering the amount of $38,851.13 and interest from (the mother and the aunt) …”.  My claim, as stated in my submissions, is that the Public Trustee’s breach of duty was in failing to investigate recovery action, not failing to recover money.  The primary consequence of this failure was the systemic bias against (CRG’s) mother resulting in (CRG) losing the opportunity to live in his own home supported by her.

  1. [33]
    So it is now said that the failure to ‘investigate recovery action’ meant that a belief that mother and aunt had misappropriated the amount concerned was maintained over a long period.  It is said that this caused decisions to be made by the tribunal, by the Adult Guardian, and the Public Trustee which were adverse to CRG and which deprived him of the benefit of home ownership.  It is said that had the Public Trustee ‘investigated recovery action’ the systemic bias on CRG’s mother would have been removed, because she would have been exonerated as she was later in 2013 when the matter was in fact, investigated.[21]
  2. [34]
    How this claim can possibly be one for compensation for $38,951.13 plus interest as appears on the paperwork submitted by the current administrator could not be more obscure.  As a claim for compensation for that amount, it must fail.  Instead the principle behind the claim is properly considered under claim (c) because it relates to post December 2003 events.

The submissions in support of claims (b) and (c)

  1. [35]
    The basis for the claim for compensation is that had CRG resided in a home which he owned, then the home would have appreciated in value and CRG would have received an income through the disability pension because his main asset would be disregarded.  ‘Instead he remained homeless, ineligible for public housing, without an income and his assets were managed as a perpetual deficit budget’.[22]  It is said that this also meant that he lost eligibility for disability support services and legal aid through the Aboriginal Legal Service, and was therefore disadvantaged in many court appearances between 2004 and 2010.[23]  And it is said that when the unit which was purchased in his name by the joint administrators was rented out in June 2004, he was ‘permanently dispossessed of his real estate from that date’ and it prevented CRG from living in his own home with his mother.[24]  It is said that since CRG lost eligibility for the disability support pension, by 2009 the money had depleted to such an extent that no purchase was possible.[25]
  2. [36]
    The current administrator’s arguments that the decisions which were made were a breach of the GAA are various.  They include allegations that, contrary to the General Principles, the Public Trustee failed to consult with CRG or the family about where CRG was to live, or give notice of intentions with respect to the letting out of the unit or its sale, or to take account of CRG’s Aboriginal background.[26]
  3. [37]
    It is said that the Public Trustee made a mistake about the Centrelink preclusion period,[27] and was misled and misled others about CRG having an acquired brain injury.[28]
  4. [38]
    And it is said there had been a failure to comply with the prudent person investment rule.[29]
  5. [39]
    One complicated submission is that since the tribunal in its decision of 8 April 2004 had decided as a fact that the joint administrators had misappropriated CRG’s funds,[30] therefore the Public Trustee had a duty to investigate this.[31]  And had the Public Trustee investigated it, the joint administrators would have been exonerated.  Since this investigation was not done, the mother had faced ‘systemic bias’ with the tribunal, the Adult Guardian and with the Public Trustee and was therefore disregarded as an option to provide support for CRG.  The systemic bias should have been removed, and then CRG would have lived with the mother in the unit, or possibly in some other accommodation.  Therefore CRG suffered financial loss.  This is because had he been living with his mother in his own property, he would have been eligible for the disability support pension at a higher level and he would have had the financial benefit of home ownership.[32] 
  6. [40]
    One example of the systemic bias against the mother according to the current administrator, is shown by what happened when CRG was released on bail in December 2003.  It is said that the Magistrates Court was to decide at that time where CRG should live on release.  It is said that the lawyer appearing for CRG at that time did not inform the Magistrate of the availability of the unit and bush retreat owned by CRG where CRG could live with his mother.  This, it is said, was because relying on what he had been told by others, the lawyer reported to the court his suspicion of ‘major mismanagement and fraud involving trust monies’.  And this is why he did not invite the mother to attend court, with the result that the Magistrate was not informed of this option.[33]  Therefore the opportunity for CRG to live in the unit and the bush retreat when he was released from gaol in December 2003 was missed.  So had there not been the systemic bias, CRG would have had the opportunity to build his new home and life ‘from the ground up after homelessness and gaol’.[34]
  7. [41]
    As an alternative submission to the above, it is said that it is likely that the Public Trustee did in fact investigate the payment of the legal fees of $31,527.77 in 2004 and found at that time that the transaction was lawful but supressed this information thereby maintaining the systemic bias on CRG’s mother.[35]
  8. [42]
    The current administrator contends that on 13 December 2002 the tribunal determined that home ownership was viable and a more appropriate option than the Public Trustee’s financial plan, therefore this matter is ‘settled’ by the tribunal and no further evidence about it is required in respect of earlier years.[36]  Somewhat differently to the way this is put by the current administrator however, the tribunal stated in its decision of 13 December 2002 that an administrator was needed not only to manage the compensation amount but for all legal and financial matters such as a purchase of property,[37] that the Public Trustee has acted prudently and appropriately in the financial management of the fund,[38] but that the mother and aunt’s financial plan was ‘viable’,[39] and that a decision about the purchase of a property for CRG to live in had been delayed by a breakdown of the relationship between CRG’s mother and the Public Trustee.[40]
  9. [43]
    Mr Jones as separate representative on CRG’s behalf puts the argument very simply in his submissions.  He says that, concentrating on the period between 2003 and 2007, CRG was vulnerable, with a history of homelessness and mental illness with little chance of earning a wage.  This meant he was reliant on Centrelink benefits and they would be maximised if he had a principal place of residence in his ownership.  He was also in need of stable accommodation and his most secure option was property ownership, to achieve those two goals.  Hence at least the unit should have been kept as a home for CRG.

Period between 2000 and 2002

  1. [44]
    For this period, in submissions in reply, the Public Trustee raises an argument based on issue estoppel or possibly on res judicata.  It is said that the tribunal decided on 13 December 2002 that there had been no breach of duty of the Public Trustee over this period.[41]  Hence this cannot be claimed now. 
  2. [45]
    This defence to the claim should have been raised with the tribunal so that it could have been identified as an issue in the application.  Failing that, it should have been raised in the first submissions.  As it is, because it has been raised in submissions in reply, neither the current administrator nor CRG’s separate representative have had an opportunity to make submissions on this point.  It would not be fair for me to consider it.
  3. [46]
    In support of the claim for this period, the current administrator says that CRG’s family were trying to persuade the Public Trustee to purchase a home for CRG with CRG’s funds but the Public Trustee refused to do this and it was not even considered.  The contemporary paperwork shows the true situation.
  4. [47]
    It is correct that CRG’s mother and the current administrator did request the Public Trustee to ‘purchase a house for (CRG)’.  The details appear in a letter from the Public Trustee to the tribunal dated 30 October 2002.[42]  From that letter it can be seen that the plan was that a house would be purchased and CRG’s immediate family would occupy it with CRG. 
  5. [48]
    Contrary to the current administrator’s assertion that this was not considered at all, the Public Trustee stated in the letter:

There were a number of factors including (CRG’s) goals, cultural background, medical and functional status and support networks, that needed to be taken into account prior to deciding whether a house purchase was a suitable accommodation arrangement.  (CRG’s) involvement in the decision making process was considered as a priority.

In (CRG’s) situation, it was considered appropriate for the Public Trustee’s Disability Support Officer to engage the Aboriginal Welfare Officer from the Aboriginal and Islander Health Service to liaise with (CRG), his family and the Public Trustee in regard to the issue of (CRG’s) accommodation.

  1. [49]
    The letter goes on to explain that two meetings were arranged to involve all stakeholders to discuss future accommodation arrangements for CRG.  The suggestion of the Disability Support Officer was that CRG should rent a house of his choice for a period of 6 to 12 months ‘to evaluate his commitment with his living arrangement’.  Upon the success of this trial, a suitable house for CRG could be purchased.  This proposal was because the Disability Support Officer considered from the medical reports held for CRG that CRG ‘experienced considerable conflict with his immediate family and it was questionable whether it was (his) goal to move in with his mother and her partner’, and that CRG had moved into the hostel due to this conflict.
  2. [50]
    The first two meetings in June 2001 were not attended by all necessary stakeholders, so a third meeting was organised in July 2001 but no agreement was reached.  For this reason ‘no plan of action for the purchase of a house has been recommended’, although the Public Trustee ‘is willing to continue to review (CRG’s) living arrangement and will continue to consider whether a long-term accommodation option is feasible for (CRG’s) lifestyle needs’.
  3. [51]
    There is further information about this time in a letter from the Public Trustee to the tribunal some nine years later.[43]  This shows that the current administrator identified in June 2001 a number of properties that could be purchased for CRG, whereupon the Public Trustee said a meeting would need to be arranged to discuss the proposal, and that the meeting in July 2001 had to be abandoned when CRG’s mother became verbally aggressive and violent and police had to be called. 
  4. [52]
    In December 2001 the current administrator again contacted the Public Trustee about purchasing a property on CRG’s behalf and the response of the Public Trustee was again that ‘the property could not be considered until (CRG) had demonstrated history of successful living arrangements and adequate support structure in place’.  Then the Public Trustee found it difficult to make personal contact with CRG and his family was ‘uncooperative in providing .. the contact details’. 
  5. [53]
    On 6 September 2002 CRG attended the office with his uncle and stated that he had been living with his uncle for about a year.  He said that he had not been in contact with the Public Trustee because his mother would not provide the office details to his uncle so that matters could be discussed.  The following week a client meeting was set up and payments put in place.  Soon after however, CRG left his uncle’s accommodation and was living in hostels.
  6. [54]
    The above explains why there were no further attempts to review accommodation arrangements for CRG between these attempts in 2001 and the application on 23 August 2002 by CRG’s mother and aunt to take over as joint administrators.  It can be seen from the tribunal decision of 13 December 2002 that the Public Trustee was then saying that a point had been reached when they could not get CRG’s mother to co-operate and that they no longer had ‘face to face communication’ with her, and this had prevented an appropriate decision being made about the purchase of a house.  The Public Trustee had tried to involve CRG in the decision making process but this had proved very difficult.  His mother had refused to give them CRG’s current address and had also refused contact details of his father.  If what CRG said on 6 September 2002 is right, CRG’s mother was discouraging CRG from contacting the Public Trustee.  The Public Trustee did recognise however, that the purchase of a house for CRG with the investment of the residue was an appropriate strategy because it would reduce the assets to a point where he would be entitled to the disability support pension.[44] 
  7. [55]
    Over this whole period, CRG had the right to make his own accommodation decisions.  It was clear that he was very unsettled and was unable or unwilling to stay with any family member for a length of time.  In the circumstances, the Public Trustee’s requirement for a practice period of renting was obviously sensible, and it can be seen from the subsequent failure of the mother and the current administrator to entice CRG to the unit and bush retreat that had been purchased with his funds that the Public Trustee had been correct to insist on this practice period.
  8. [56]
    It is also clear from the above detail that sufficient efforts were made to involve CRG and his family with the decision making and account was taken of his Aboriginal background. 
  9. [57]
    The Public Trustee did not fail to comply with the GAA in the exercise of a power over this period as alleged.

Disposal of the bush retreat and the renting out and subsequent sale of the unit

  1. [58]
    When the Public Trustee was reappointed as administrator on 12 December 2003, CRG did not have sufficient funds in his account to meet his daily living expenses.[45] His assets were:
    1. (a)
      The unit on the Sunshine Coast.
    2. (b)
      The bush retreat.
    3. (c)
      About $500 in cash and about $2,677 held by a firm of accountants.
  2. [59]
    CRG had debts totalling $3,038.23 and these were increasing.  There was a rates bill on the bush retreat of $458.95 (this later increased to $1,449.28 and was probably attracting interest at 11% per annum) and body corporate fees for the unit of $777.78 (this later increased to $1,625.54 and was said to attract interest at 30% per annum) and a rates bill due on the unit (these increased to $1,856.17 and attracted interest at 11% per annum).  CRG was not receiving a Centrelink pension and no rent was being received on the unit.
  3. [60]
    The evidence shows that the Public Trustee held off enforcement of the rates by the respective Councils by promising payment later in 2004.  The plan was probably to sell the bush retreat to enable this to happen.
  4. [61]
    There was a meeting on 5 February 2004.[46]  CRG’s father and the stepmother attended the meeting.  At the time CRG was supposed to be living with them pursuant to his bail conditions, and his father had left his job to look after CRG.  There were insufficient funds at that time to contribute on CRG’s behalf to this arrangement.  It was agreed that the unit should be rented out and that the bush retreat would be considered for sale to improve the financial position.
  5. [62]
    The bush retreat was sold on 14 January 2005.  At that time CRG was supposed to be living with his father, but it was more that he was using his father’s house as a base.  By then, the unit had been let out for $230 per week, and the Public Trustee had arranged for CRG to receive Centrelink payments, and payments were made to the father for his board and lodging.
  6. [63]
    These actions were clearly necessary to stabilise the immediate financial difficulty.  They gave effect to the reality that CRG had expressed no interest in the bush retreat and little interest in the unit.  It was also important to maintain CRG’s father’s home as a base, and so it was right that CRG would contribute to that financially.  But there were debts to be paid and insufficient capital to pay them.  The only sensible option was to sell one of the properties.  It was certainly prudent to sell the bush retreat which had appreciated in value.  And since the unit was let out on an ordinary residential tenancy, and there is no security of tenure for such lettings in Queensland, in the circumstances that was a prudent decision too, because it kept the unit available for CRG should he wish to live there after all.
  7. [64]
    It cannot be said that any decisions made or actions taken to achieve these results could possibly be a failure to comply with the GAA in the exercise of a power.
  8. [65]
    Turning to the sale of the unit in June 2017, even when rented out it is noticeable that it was not providing a good return for CRG as an investment.  The rates were about $2,100 per annum,[47] although this would be reduced by about $120 to allow for water consumption charges which a tenant would pay; the body corporate fees were about $1,500 per annum.  In addition to these expenses however, there was also a property rental fee of about $600 per annum payable to the Public Trustee caused by having a property investment.  And there were recorded expenses of $2,845 in 2004 connected with the unit.[48]  Some of these expenses appear to be extraordinary items, but others are the sort of charges an owner would face in the usual event.  Assuming that it is right to allow for about half these expenses, the annual expenses directly connected with the unit were roughly $5,500 per annum or $106 per week.  The rental income was $230 per week.  The net investment return was therefore 2.7% (assuming a value of $240,000 for the unit).  Although some capital enhancement of the value of the unit could be expected over time, this could not be guaranteed.  And there were the usual risks associated with property ownership: unexpected reductions in the rental market or capital value, or unexpected maintenance or repairs.
  9. [66]
    The Public Trustee says that at this time, despite the sale of the bush retreat and the new income coming into the estate, CRG’s expenses still exceeded his income so that he could not afford to keep the unit as an investment.[49]  CRM’s disability support pension was only $134.70 a fortnight as from February 2006.  This was a depressed amount because of his assets.  The value of the unit had to be included in his assets because he was not living there.[50]  The Public Trustee was also charging a total of $5,486 per annum in fees.[51]  The finances were not assisted by Centrelink issuing a refund notice on 9 August 2006 for overpaid pension in the sum of $15,500.56.[52]  The Public Trustee says that on 4 January 2007, $10,000 had to be withdrawn from CRG’s cash investments to meet his debts.[53]  From this it can be seen that CRG’s expenses exceeded his income at that time.  CRG’s separate representative regarded this as ‘not surprising’ bearing in mind the Public Trustee was paying significant sums to CRG’s father.[54]  As the tribunal found in CRG [2019] QCAT 168, some of those payments to CRG’s father should not have been made, but that has already been the subject of a compensation order.
  10. [67]
    Earlier in the year in which the unit was sold, the Public Trustee was aware that CRG was still using his father’s residence as a base, but there came a point after that where his whereabouts were unknown although his terms of probation were that he should live with his father.[55]  The Public Trustee was also aware that CRG had only lived in the unit for one week after it was purchased by the joint administrators, and there was nothing to show that CRG had any interest in it as a place to live. 
  11. [68]
    The Public Trustee was also aware that the last expressed view about the unit from CRG’s mother was that it was not suitable as a home for CRG anyway.  This view appeared from a statement signed by CRG himself and by his mother and by one of his aunts.  It was faxed to the tribunal on 16 December 2003.[56]  This stated that CRG had a severe substance abuse problem and had resumed his violent behaviour and this had resulted in a number of police charges.  The family were agreed that CRG’s best chance of resuming a stable lifestyle is to live in ‘basic conditions in the bush’, supported by other family members.  It was said that the unit was therefore not appropriate for CRG at present ‘given its easy access to paint, petrol and alcohol and transport to substance abuse centres such as South Brisbane’.  So ‘we are purchasing a 30 acre block of bushland’ where CRG would live with an aunt and her family, which in the short term would ‘provide (CRG) with an opportunity to dry out and begin to heal psychologically’.  The stated idea was to build a house on the land with the proceeds of sale of the unit, or to rent the unit and to use the rent to pay a building loan.  ‘If CRG, after a period of time, rejects this option and continues his lifestyle of inner-city substance abuse, then the land will always be there for him when he needs a rest’.
  12. [69]
    It is said that it was imprudent to sell both properties because this reduced the amount CRG could receive as disability support pension.  But this is incorrect.  Since CRG was not living at either property, his administrators had no choice but to inform Centrelink of this fact to ensure that the disability support pension was at the correct level.
  13. [70]
    As the separate representative points out, had CRG been persuaded to live in the unit at that time, his financial position would have changed completely.  His disability support pension would have increased, and the payments to his father would not have been needed.[57]  This would have been a good solution for CRG if it could be achieved, as the Public Trustee had always recognised.[58]  The obvious difficulty was how that could be achieved.  As has been demonstrated by actual events, it was in CRG’s interests that he be cared for by family members living with him.  But he showed no interest in this on a permanent basis until he became more settled in 2009.  In the circumstances, although it may have been an option for the Public Trustee to consider ways in which the unit could be maintained for CRG should he wish to live there at some time in the future, it was certainly not an imprudent decision to opt instead for its sale.
  14. [71]
    The suggestion that anything the Public Trustee did, or failed to do, resulted in systemic bias against CRG’s mother thereby depriving CRG of the chance to purchase a home in which to live with her and claim disability pension is incorrect.  It is clear that CRG chose where to live rather than accepting decisions made in this respect by others, including his own family.  And it is incorrect to say that had the enquiries which were made in 2013 into the alleged misappropriation of CRG’s funds by the joint administrators in 2003 would have made a difference if they had been made earlier.  The fact is that the 2013 investigations did not exonerate CRG’s mother.  The Public Trustee obtained two legal opinions in 2013.  With respect to the payment of legal fees using CRG’s money, they differed: the first did advise that there was no breach of duty but the second advised that the joint administrators had been in breach of their obligation diligently to protect CRG’s interests and to avoid conflict transactions.[59]  Both legal opinions considered that money had been spent improperly on vehicle expenses.  A decision was made by the Public Trustee however, not to pursue either matter. 
  15. [72]
    The Public Trustee points out that it was only between 22 December 2003 and 8 April 2004 and between 7 February 2007 and 23 March 2007 that the Adult Guardian was appointed as CRG’s guardian for accommodation decisions, and that there was no request over that time by the Adult Guardian to acquire a residence for CRG.  The Public Trustee says there was no such request by anyone else, apart from the requests made in 2001 as referred to above.[60]
  16. [73]
    It was only from about July 2009 when CRG became more settled that it would have been feasible to purchase a home for him, but by that time as the current administrator says, ‘his trust assets had diminished to a point where appropriate home ownership was no longer possible’.[61]
  17. [74]
    As for the alleged failure of the Public Trustee to consult CRG in this period, the Public Trustee has stated that he had not been able to contact CRG personally since November 2001, but explains that this was because his whereabouts were not known and CRG’s support network did not ‘constructively assist contact between CRG and the Public Trustee’.[62]  In fact, we know from other material that CRG did attend the Public Trustee’s office on 6 September 2002,[63] and we also know that the Public Trustee was present at a meeting with CRG and the Public Guardian in February 2007.[64]  We know that the Public Guardian made great efforts in 2007 to contact CRG when it was known he had left his father’s home, largely to no avail.[65] 
  18. [75]
    For the lack of direct contact, the current administrator blames what he says is the Public Trustee’s inability to engage with CRG or his family in a culturally appropriate way.[66]
  19. [76]
    As for the alleged failure to consult CRG’s family about the decisions made in this period, we know that CRG’s father was party to the decision made on 5 February 2004 to sell the bush retreat and rent out the unit.  We also know that over the period while the Public Trustee’s information was that CRG was reliant on his father’s home as a base, which included the beginning of 2007, the father and the stepmother were in regular and frequent contact with the Public Trustee. 
  20. [77]
    Although there is nothing to show who was consulted about the decision to sell the unit in 2007, and the lack of direct contact with CRG at the time was highly regrettable, there is insufficient evidence for me to find that there was a failure of the Public Trustee to apply the General Principles when making that decision. 
  21. [78]
    In any case, even if there was such a failure, it cannot be said that any financial loss resulted from it.  This is because, any family discussion at the time would most likely have been very similar to that in 2001 – with the Public Trustee properly requiring a period of time to pass over which CRG was cared for by his chosen permanent family carer, followed by the purchase of a home for him under the same arrangement if the finances allowed.  But on the balance of probabilities, this would not have found favour with CRG in 2007, because he was still very unsettled at that time and was still demonstrating an unhappiness to live permanently with any family carer. 

Other issues

  1. [79]
    It cannot be said that the decisions made by the Public Trustee relevant to this application for compensation were influenced in any way by anything said about the preclusion period or by any incorrect belief about the cause of CRG’s cognitive difficulties.

Conclusion

  1. [80]
    In conclusion therefore, there was nothing which the Public Trustee did, or failed to do, which resulted in CRG not living with his mother at any relevant time and therefore which prevented CRG from living in his own residence.  It was not until about July 2009 that CRG was sufficiently settled to live in his own residence with care from his family, but by that time his funds had been depleted to such an extent that the plan was no longer practical.
  2. [81]
    It is my conclusion therefore that in respect of this application, the Public Trustee did not fail to comply with the GAA in the exercise of a power.

Footnotes

[1]CRG [2019] QCAT 168.

[2]Dated 11 August 2019 at H445.

[3]Decision and reasons exhibited to the current administrator’s submissions at H445.

[4]Page 8 of submissions at H445.

[5]Written reasons for the tribunal’s decision given on 8 April 2004, [6].

[6]Page 5 of submissions of 4 October 2019 at H454.

[7]Page 8 of submissions at H445, confirmed on page 5 of submissions at H454.

[8]Decision, [39]-[51].

[9]Decision, [22].

[10]Decision, [19].

[11]Paragraph 4 of the affidavit of Clinton Miles made on 11 November 2019.

[12]CRG [2019] QCAT 168, [77]-[81].

[13]Letter from the Public Trustee dated 9 September 2011 sent to the tribunal and attached to the current administrator’s submissions at H445.

[14]Paragraph 39 of the Cultural Report of the Aboriginal and Torres Strait Islander Legal Service dated 11 June 2010 – annexure 9 to the current administrator’s submissions at H445.  This event was found to be ‘for over six years’ prior to the tribunal’s decision of 26 April 2017, [56].

[15]Letter of that date to the tribunal annexed to the current administrator’s submissions at H445.

[16]Paragraph [33] of the reasons for the decision on 26 April 2017.

[17]Submissions at H445.

[18]Paragraph 17 of submissions at H445.

[19]Submissions of Matthew Jones dated 14 August 2019 at H448.

[20]Page 2 of submissions at H454.

[21]Page 2 of submissions at H454.

[22]Page 6 of submissions at H445.

[23]Page 9 of submissions at H445.

[24]Pages 8 and 10 of submissions at H445.

[25]Page 9 of submissions at H445.

[26]Pages 6 and 7 of submissions at H445 and in other places.

[27]Pages 6, 8 and 13 of H445 and page 4 of H454.  This was a complaint made to the tribunal in the 2002 application by CRG’s mother and aunt to become joint administrators.  The Public Trustee accepted that mention had been made of a possible preclusion period but denied having given incorrect advice – submissions of 30 October 2002 annexed to the current administrator’s submissions in H445. The tribunal made no finding about this except that it expressed concern that the Public Trustee should have been able to obtain accurate information as to the precise preclusion period – see tribunal decision of 13 December 2002, [25].

[28]Pages 9, 11 and 13 of submissions at H445.

[29]It is said that the rule was breached in the manner set out in pages 6 and 11 of submissions at H445.

[30]Pages 2 and 3 of submissions at H454.

[31]That is ‘investigate recovery action’.

[32]Page 3 of submissions at H445.

[33]Page 5 of submissions at H454.

[34]Pages 5 and 9 of submissions at H454.

[35]Pages 3 and 10 of submissions at H445.

[36]Page 11 of submissions at H445 and page 4 of submissions at H454.

[37]Decision, [24].

[38]Decision, [25] and [36].

[39]Decision, [26].

[40]Decision, [29] and [38].

[41]Paragraph 4 of submissions of the Public Trustee dated 11 November 2019 at H460.

[42]Exhibit CJM-18.

[43]Public Trustee’s letter to the tribunal dated 9 September 2011 annexed to the current administrator’s submissions at H445.

[44]Decision of 12 December 2003, [21].

[45]Tribunal’s decision, [29].

[46]What happened in described in the Public Trustee’s letter to the tribunal of 9 September 2011 which is annexed to the current administrator’s submissions at H445.

[47]Paragraph 10(b) and CJM-21 of the Public Trustee’s submissions at H460.

[48]This appears from the Statement of Transactions for that year in CJM-24 in submissions at H460.

[49]Paragraphs 30(c) and 31(d) of submissions of the Public Trustee of 16 September 2019 at H453.

[50]Paragraph 34 of the Public Trustee’s submissions at H453.

[51]Paragraph 12(c) of submissions of the Public Trustee at H460.

[52]CJM-20 in H453.

[53]Paragraph 30(c) of submissions at H453.

[54]Paragraph 15 of submissions of Matthew Jones dated 17 October 2019 at H455.

[55]CRG [2019] QCAT 168, [77]-[80], [93], [96].

[56]CJM-12 in H453.

[57]Paragraph 16 of submissions at H455.

[58]Meetings in 2001, and decision of 12 December 2003, [21].

[59]Page 5 of second advice in CJM-7 in H453.

[60]Paragraph 30(a) of Public Trustee’s submissions at H453.

[61]Page 9 of submissions at H445.

[62]Public Trustee’s letter of 1 November 2011 sent to the tribunal and annexed to the current administrator’s submissions at H445.

[63]Public Trustee’s letter to the tribunal dated 9 September 2011 annexed to the current administrator’s submissions at H445.

[64]CRG [2019] QCAT 168, [85].

[65]CRG [2019] QCAT 168, [80] and [93].

[66]Referring to the Cultural Report of the Aboriginal and Torres Strait Islander Legal Service dated 11 June 2010.

Close

Editorial Notes

  • Published Case Name:

    In an application about matters concerning CRG

  • Shortened Case Name:

    CRG

  • MNC:

    [2020] QCAT 153

  • Court:

    QCAT

  • Judge(s):

    Member Gordon

  • Date:

    12 May 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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