SMD (No 2)[2015] QCAT 190

REASONS FOR DECISION

History of HB’s appointment as administrator

1. [1]
   HB, an accountant was appointed as administrator for SMD by the Tribunal on 27 May 2010. At the time of his appointment, SMD was embroiled in litigation before the Supreme Court of Queensland involving her four children, SD, WJ, SA, SF and the family company SMD & Co Pty Ltd. The Supreme Court referred the question of SMD’s capacity to the Tribunal for determination. SMD’s children then entered a settlement agreement on 22 May 2010, which nominated HB as administrator of the company and as SMD’s administrator if the Tribunal was satisfied that she had impaired capacity, which it was on 27 May 2010.
2. [2]
   At the time of HB’s appointment, consideration was given to whether he would be remunerated for his role as administrator for SMD. For an administrator to be entitled to remuneration the Tribunal must make an order in accordance with s 48 of the Guardianship and Administration Act 2000 (Qld) (‘GA Act’). The Tribunal did not make such an order entitling HB to remuneration at the time of his appointment.
3. [3]
   The transcript of the hearing shows that consideration was given to the question of remuneration. It was noted that HB would be entitled to remuneration as administrator of SMD & Co Pty Ltd, that as the bulk of SMD’s assets were held in the company there would be a lot of crossover work between the company and SMD and HB would be charging as administrator of the company. HB indicated that he would not be charging for any work that was purely personal to SMD.
4. [4]
   HB entered an agreement with AB Chartered Accountants for that firm to provide him with services on 1 July 2010. He was appointed as administrator of SMD & Co Pty Ltd on 26 July 2010. He wrote a letter to family members on 25 August 2010 giving them an initial update in regard to SMD and the company. In this letter he noted that AB Chartered Accountants charge out rates were circulated prior to his appointment and advising that his charge out rate was $420.00 per hour and the charge out rate of HS was also $420.00 per hour.
5. [5]
   SD, through his solicitors HWL Ebsworth in a letter dated 31 August 2010 indicated very strongly in reply to HB that HB had no entitlement to retain the services of AB Chartered Accountants and that he and WJ will oppose any attempt to charge AB Chartered Accountants’ fees in respect of acting for SMD. HB replied to SD on 5 October 2010, this will be discussed below.
6. [6]
   SD not being satisfied in regard to HB’s performance in his role and because of his concerns about HB’s charging of fees made application to the Tribunal for a review of the appointment of HB on 17 December 2010.
7. [7]
   The Tribunal notes that HB as administrator for SMD resolved to appoint FA and WD, two partners of AB Chartered Accountants as liquidators for the company on 30 November 2011.
8. [8]
   That application was ultimately decided by the Tribunal on 22 November 2012 at which time HB resigned as administrator and the Public Trustee of Queensland was appointed in his place. Prior to its final determination the matter was heard by the Tribunal on 24 October 2011 when directions were made and again on 31 August 2012 where further directions discussed below were made.
9. [9]
   Prior to the final determination of the application, SD was concerned to ensure that HB would not be able to further charge his mother and made an application for an interim order on 23 March 2012. HB consented to the Tribunal making an order inter alia that until further order of the Tribunal he was restrained from paying to himself or his employer from SMD’s funds or funds borrowed for her any further amounts in relation to his role as administrator of the financial affairs of SMD. Judge Kingham made this order on 26 April 2012.
10. [10]
    From that time, HB, as well as AB Chartered Accountants continued to provide services at their then charge out rates which were time recorded but for which no tax invoices for fees were issued.
11. [11]
    At the time of HB’s appointment SMD had assets in her own name comprising personal property, including three Margaret Olley paintings, located mainly in three houses at Barokee Street, Stafford that were owned by the company; as well as bank accounts both here and in Guernsey (jointly held with WJ) and two flats in London. The company owned the three houses at Barokee Street, Stafford another house at Wurtulla and a term deposit with a value of $2.2 million. WJ held a lasting power of attorney for SMD, which gave her authority to deal with the assets in the United Kingdom.
12. [12]
    HB maintains that when he was appointed he considered that because of the settlement agreement the family had been able to put their conflict behind them. As a result he anticipated that his role as administrator for SMD would require him to ensure her bills were paid and that there would not be a great deal of work of a financial nature in regard to her personal assets.
13. [13]
    The reality was that the family members had deep-seated mistrust of each other and there were alliances between SD and WJ and to a lesser degree SF and SA. A great deal of the issues appeared to centre around benefits that various family members had taken or were alleged to have taken by way of loans and gifts from SMD and the company.
14. [14]
    Soon after his appointment, HB was asked to approve a large loan to SF to enable him and his wife to purchase a house. This resulted in the company advancing to SMD the sum of $200,000.00, which was then on lent to SF by way of a second mortgage subject to a deed of priority. The making of this loan caused concern to SD’s attitude to HB.
15. [15]
    SD and WJ were further concerned when HB approved SMD travelling to the United Kingdom with SA for a holiday and to inspect the London flats. Allegations were made by WJ and SD about the propriety of sending SMD to the United Kingdom with SA. HB was then never able to gain control of the United Kingdom assets. However, he was required to pay for the expenses in regard to the flats from funds held in Australia.
16. [16]
    An application was made to the Tribunal on behalf of HB on 16 August 2011 seeking assistance, advice or direction in dealing with WJ, and the United Kingdom assets. That application ultimately was not proceeded with.
17. [17]
    At the time of HB’s appointment as administrator, SMD was residing between the houses of SA and SF. Both of these sons had young families and this accommodation arrangement was not ideal for anyone. It is fair to say that at that time SMD and her other two children were somewhat estranged. SMD expressed a wish to take up residence at one of the houses at Barokee Street and HB and his associates made efforts to determine if that was possible.
18. [18]
    The houses required a large amount of renovation and repair and it was not clear having regard to SMD’s cognitive and other issues that it was appropriate for her to reside alone in a house in the suburbs. Ultimately, arrangements were made for SMD to reside in a unit at Admiralty Quays and a service provider was appointed to give her in home support.
19. [19]
    SMD did not have an appointed guardian and HB had initially attempted to have her children co-operatively make personal decisions for her by way of a family council. This was not successful and SA assisted SMD informally in regard to personal decisions.
20. [20]
    SMD suffered a deterioration in her health and was placed in a nursing home in late 2011. This necessitated the entry of a care agreement and payment of a bond to the nursing home.
21. [21]
    There was continuing litigation in the Courts involving claims by SD for reimbursements of expenses, an application against HB as administrator for the company in terms of disclosure of the company accounts and for assessment of the fees paid to him as administrator of the company.
22. [22]
    HB wrote to the Tribunal on 8 May 2012 advising that a number of matters had progressed in regard to the company in terms of its tax position and payment of a dividend to SMD to deal with all outstanding loans. The Stafford and Wurtulla properties were to be sold and once all assets were realised the liquidator was to ensure SMD received all of the funds and they were to be invested in her name. It was said this would make matters less complex and reduce the opportunity for conflict. HB said that he intended to put a plan to family members to deal with the remainder of outstanding issues:

    1. Loan accounts from the company repaid by the liquidator’s dividend. He was to seek consensus from family members on how these could be recognised personally to reflect equitably amongst the group;
    2. The sale of the Stafford and Wurtulla properties and proceeds invested on behalf of SMD;
    3. The London flats which may be sold as is or renovated and rented or sold. It was noted that there was an inheritance tax issue which may be avoided by taking appropriate action;
    4. London and Guernsey bank accounts which need to brought under the administrators control which can be achieved in cooperation with SMD’s enduring power of attorney in the United Kingdom;
    5. There are a number of wills in existence including a valid Australian will and then separate, United Kingdom and Australian wills and a later will of 30 June 2009, which supersedes the other wills. The matters contained in the wills need to be discussed within the family.
23. [23]
    HB states that there will be a considerable amount of work required to develop his final plan. On the basis that the family need to see a sensible plan rather than continued litigation he asked that a deferment of hearing of the administration review application be granted until all parties including the Tribunal have received and considered his final plan. SD supported an adjournment given the costs of all of the proceedings until August 2012.
24. [24]
    HB then determined to try to resolve all the issues by entering a deed of settlement with the family members. This would result in the assets of both SMD and the company being realised with the proceeds, after gifts of $1,340,008.00 to family members, to be gifted into a family unit trust. SMD was to be entitled to trust distributions during her lifetime with the children gaining control on her death. As part of this deed, the family were to consent to the payment to HB of his fees and disbursements in the amount of $456,338.70, in respect of both SMD and the company.
25. [25]
    HB made an application to the Tribunal for approval of the conflict transaction represented by the deed on 30 August 2012 in particular in regard to the fees. In an affidavit dated 30 August 2012 accompanying the application HB stated that one of the foremost reasons for putting this arrangement into place is to remove the prospect of disputes arising between family members in relation to SMD’s estate upon her death, having regard to the wills mentioned above and conflicting evidence in regard to capacity. This plan, it was said, by placing all of the assets in a trust with each of the children to have an equal entitlement to units upon her death would avoid such disputes. The deed would also end disputes, which currently existed between family members.
26. [26]
    As the deed contemplated transactions that were considered unusual by the Tribunal, various directions were made for parties to make submissions in regard to the arrangement. In particular, the gifting of an adult’s assets into a trust trended to offend the decision in Re Heller.^[1] The Tribunal at a hearing on 31 August 2012 made directions for the active parties to make submissions in regard to authorising HB to enter the conflict transactions in the deed; in regard to fees and the appointment of AB Chartered Accountants and whether the deed was in the interests of SMD, having regard to the GA Act and Re Heller. The Public Trustee of Queensland was appointed to represent the interests of SMD and make submissions on her behalf in response to those submissions and generally. Ultimately, SD determined that he would not support the settling of a trust and the application was withdrawn.
27. [27]
    Following the withdrawal of the application for approval of the deed HB made application for approval of his fees and disbursements as administrator for SMD on 15 November 2012. That application was not determined prior to HB being granted leave to resign as administrator and it is the subject of this decision.
28. [28]
    At the hearing on 22 November 2012, the Tribunal made orders for HB to submit his accounts and for his fees and charges and those of AB Chartered Accountants to be audited by Vincent’s Chartered Accountants. The parties were asked to make submissions to the Tribunal in regard to the issues of whether:

    1. HB should be entitled to fees and the amount of those fees;
    2. the appointment of AB Chartered Accountants represented a conflict transaction and if so whether it should be approved by the Tribunal;
    3. if the appointment of AB Chartered Accountants was approved then what amount of the amounts charged by AB Chartered Accountants should be allowed to HB by way of reimbursement having regard to the requirements of s 48 of the GA Act?
29. [29]
    The application in regard to the approval of HB’s fees and the payments to AB Chartered Accountants was heard on 19 May 2014. At that hearing, the Public Trustee of Queensland provided details of SMD current assets and her budget, which showed that she had annual income of $14,789.51 and annual expenses of $88,033.63, which included administrator’s fees of $8,236.88 with an allowance of $20,000.00 for legal expenses.
30. [30]
    Her assets under administration included funds held in the Public Trustee cash account of $6,208.91 and the term investment account of $533,288.12, with a Commonwealth bank pensioner account of $2,107.73 and an accommodation bond at Regis Yeronga of $547,416.00. She had furniture and effects of $5,000.00 and Margaret Olley paintings valued at $160,000.00.
31. [31]
    There was also an amount of $1,338,933.03 including cash and a property at Wurtulla controlled by the liquidators of SMD & Co Pty Ltd, which after the liquidator’s fees would be available for distribution to SMD. The assets do not include any allowance for the flats in the United Kingdom or the Guernsey bank accounts as these are not under the control of the Public Trustee. The total of SMD’s Australian assets was $2,427,953.64 at the time of the hearing.

Is HB entitled to remuneration as an Administrator and if so how much?

32. [32]
    The entitlement of an administrator to remuneration is found in s 48 of the GA Act which relevantly states:

3. (1)
   If an administrator for an adult carries on a business of or including administration under this Act, the administrator is entitled to remuneration from the adult if the tribunal so orders.

3. (2)
   The remuneration may not be more than the amount the tribunal considers fair and reasonable having regard to –

1. (a)
   the nature and complexity of the service; and

2. (b)
   the care, skill and specialised knowledge required to provide the service; and

3. (c)
   the responsibility displayed in providing the service; and

4. (d)
   the time within which the service was provided; and

5. (e)
   the place where, and the circumstances in which, the service was provided.

33. [33]
    HB sought the following relevant orders in regard to his fees:

    1. Pursuant to s 48 (1) of the GA Act HB be paid the following remuneration for his professional services as the administrator of SMD:
       1. For the period from June 2010 to 30 September 2011 the amount of $38,339.08 calculated at the hourly rate of $420.00 (excl GST) for the period to 30 June 20111 and at the hourly rate of $440.00 (excl GST) form 1 July 2011 to 30 September 2011;
       2. For the period from 1 October 2011 to 30 June 2012 the amount of $22,062.34 calculated at the hourly rate of $440 (excl GST); and
       3. For the period from 1 July 2012 to 9 November 2012 the amount of $30,081.87 calculated at the hourly rate of $450.00.
34. [34]
    There are several preliminary issues. Firstly, does the fact that HB is a former administrator disentitle him from proceeding with this application? The Public Trustee of Queensland raised this issue. The Tribunal notes that the application was made at a time when HB was the administrator and relates to the period of his administration. The Tribunal agrees with the submissions made on behalf of HB that the reasoning in the decision of SMD^[2] has the same relevance in regard to this type of application as it did in relation to a claim for compensation. Therefore, the application can be continued by a former administrator. There is also no issue with the Tribunal making an order about remuneration retrospectively.^[3]
35. [35]
    The next question is, was HB carrying on a business of or including administration under the GA Act. It is clear from the material that HB carried on his work as administrator in a businesslike manner. He arranged for office support and maintained an extensive paper and electronic file in respect of the work he and AB Chartered Accountants did in respect of SMD. While he had not acted as administrator under the GA Act before, having regard to the type of work that he had been accustomed to doing the Tribunal accepts that HB upon taking on his role of administrator carried on business of or including administration.
36. [36]
    HB is only entitled to remuneration for acting in his role as administrator of SMD if the Tribunal so orders. The Tribunal’s order of 27 May 2010, which appointed HB, as administrator as mentioned above does not contain a clause ordering that HB be entitled to remuneration as an administrator. The Tribunal’s reasons for that decision state:

Mr Boddice, representing SD informed the Tribunal that HB had agreed that he would not charge fees for his acting as the Adult’s administrator.^[4]

37. [37]
    Reference has been made in the material before the Tribunal to parts of the transcript from that hearing which are said to clarify HB’s position and to letters he sent to the children of SMD and the understanding of the parties at the time the settlement agreement was entered on 22 May 2010. None of this gives HB an entitlement to remuneration only the Tribunal can do that.
38. [38]
    There was reference in the transcript of the hearing of 27 May 2010 to the fact that HB would be charging for his work as administrator of SMD & Co Pty Ltd and that there would be crossover between the work for SMD & Co Pty Ltd and SMD. It is stated in the Vincent’s report that one interpretation could be that the parties present at the hearing were agreeable to HB charging for time spent on administration of both the company and SMD’s financial affairs to the company.
39. [39]
    HB’s lawyers filed a statement for him on 18 November 2012 to which was exhibited several tax invoices as follows:

    1. AB Chartered Accountants Tax Invoice dated 14 November 2012 for professional and administrative services provided by HB as financial administrator for SMD for the period 15 June 2010 to 30 September 2011 - $34,853.71 plus GST $3,485.37 Total $38,339.37;
    2. AB Chartered Accountants Tax Invoice dated 14 November 2012 for professional and administrative services provided by HB as financial administrator for SMD for the period 1 October 2011 to 30 June 2012 - $20,056.67 plus GST $2,005.67 Total $22,062.34; and
    3. AB Chartered Accountants Tax Invoice dated 14 November 2012 for professional and administrative services provided by HB as financial administrator for SMD for the period 1 July 2012 to 9 November 2012 - $27,347.15 plus GST $2,734.72 Total $30,081.87.
40. [40]
    In regard to the first invoice the Tribunal notes that an affidavit of SD filed on 23 March 2012 has exhibited to it an affidavit of HB filed on 20 March 2012 in the Supreme Court application. In that affidavit, HB confirms his dual appointment as administrator for the company and SMD and that fees were rendered by AB Chartered Accountants on a monthly basis from June 2010 through to the end of September 2011 to the company for work carried out on behalf of SMD & Co Pty Ltd and SMD. He explains that the fees billed to the company were paid to AB Chartered Accountants from the cheque account of SMD & Co Pty Ltd.
41. [41]
    The total accounts paid during the 2011 financial year was $177,448.00. Of this amount, $80,659.00 has been treated as accounting expenses in the 2011 financial accounts of SMD & Co Pty Ltd and an amount of $96,789.00 is said to relate to accounting work undertaken in relation to the affairs of SMD. The amount of $96,789.00 has been treated as a loan to SMD by the company in the 2011 financial accounts of SMD & Co Pty Ltd and a similar process will be used in the 2012 year.
42. [42]
    HB stated that the company was placed by way of a member’s resolution into liquidation on 31 October 2011 and SMD’s debit loan account was reduced to nil by way of a liquidators distribution form the company on 31 October 2011.
43. [43]
    Exhibited to HB’s affidavit are copies of the invoices rendered by AB Chartered Accountants to the company and a copy of the itemised accounts for the period from July 2010 to early October 2010 and an analysis of the work undertaken by AB Chartered Accountants for the company and SMD. This analysis includes identification of work performed by HB as administrator for the company and in relation to SMD’s affairs. A detailed summary of the fees rendered for the months of June 2010 to end of September 2011 is exhibited. HB states that in those instances where an overlap between the company’s affairs and SMDs affairs, as referred to above, has occurred the fees have been allocated to SMD rather than the company.
44. [44]
    HB in the statement filed on 18 November 2012 confirms that he has filed accounts for acting as the administrator of SMD & Co Pty Ltd in the Supreme Court of Queensland. Those accounts show payments for work performed by AB Chartered Accountants in relation to SMD’s personal financial affairs for the period form 1 June 2010 to 30 September 2011. The reasons why these accounts were charged to SMD & Co Pty Ltd is because the terms of settlement provided for the assets of SMD & Co Pty Ltd to be used to meet SMD’s personal expenses.
45. [45]
    HB states that:

Basically the company was lending money to SMD to pay these personal accounts. I did not have access to SMD’s overseas bank accounts to pay these expenses. Since his appointment SMD’s source of funds for payment of her living expenses has been advances to her from SMD & Co Pty Ltd. Prior to the liquidator being appointed for SMD & Co Pty Ltd, a loan account was in place that recorded the advances made by SMD & Co Pty Ltd to SMD. Those advances included payment of the fees invoiced by AB Chartered Accountants, which also included $38,339 for my services. Those invoices included his services because he recorded some of the time spent as administrator in the AB Chartered Accountants time recording system.

46. [46]
    The Tribunal notes that HB disclosed in a financial management plan dated 31 March 2011 that fees of $122,208.98 had been paid to AB Chartered Accountants from SMD & Co Pty Ltd. There is no mention of fees incurred by SMD until the accounts for the periods 1 February 2011 to 31 May 2012 where it is stated SMD incurred fees of $52,473.00. In HB’s final accounts by administrator for the period 1 June 2012 to 22 November 2012 a liability of SMD to AB Chartered Accountants of $175,596.00 is disclosed.
47. [47]
    One of the concerns raised by the Tribunal for consideration by Vincent’s was the possibility of SMD being charged for work which had already been charged to SMD & Co Pty Ltd. Vincent’s confirmed that only one charge had been used by AB Chartered Accountants for the company and that HS had manually split the time between the company and SMD in response to the issues that lead to Vincent’s being appointed.
48. [48]
    Vincent’s state that:

Due to the nature of the time recording and the later splitting of that time as allocated to the company or SMD as long as the time recorded is correct (which there is no way of checking) it is not possible for work to have been billed to SMD which may have been billed to the company. He was advised all bills were issued to the company.

49. [49]
    Clearly, an exercise has been undertaken by HS at the request of HB in regard to splitting the time between the company and SMD and from that, new tax invoices have been issued. It is noted that the tax invoices mentioned above all bear the date of 14 November 2012. HB has acknowledged above that the advances to SMD for payment of her portion of the AB Chartered Accountants tax invoices issued to the company included an amount of $38,339.00 for his services that is a similar amount to the amount in the first invoice above.
50. [50]
    The Tribunal is satisfied that accounts have been rendered to SMD & Co Pty Ltd by AB Chartered Accountants, which include amounts, which are now claimed as being for the services performed by HB as administrator for SMD for the period 15 June 2010 to 30 September 2011. These accounts have been paid by HB in his role as administrator for the company with a debit then being made to SMD’s loan account; this has not been disclosed in documents filed in the Tribunal. This loan account has on HB own words been reduced to nil by payment of a liquidator’s distribution.
51. [51]
    The allowance of a further tax invoice for the same amount would result in the services potentially being paid for twice, which is exactly what the Tribunal was trying to avoid. The Tribunal considers that what occurred in regard to the billing of the company is explicable in terms of crossover work, to the extent that the appropriate assessing authority in regard to the company would allow it. The probity of the claim is not for this Tribunal to determine as the work has been time recorded to the company in the AB Chartered Accountants time recording system, tax invoices have issued to the company and have been paid by HB from company funds.
52. [52]
    While there may be a conflict transaction involved in HB acquiescing as administrator for SMD in regard to any amount debited to her loan account the Tribunal has not been requested to approve this and leaves the question to the Supreme Court of Queensland in regard to whether AB Chartered Accountants has an entitlement to these amounts.
53. [53]
    HB then has no entitlement to remuneration from SMD for the period from 27 May 2010 to 30 September 2011 as any work for which he may have been entitled to remuneration has been billed to the company by AB Chartered Accountants and paid by the company.
54. [54]
    This situation changed on 31 October 2011 when HB resolved to place the company into liquidation. As from that date HB was no longer able to charge through the company for crossover work as administrator for SMD. It would have been appropriate at that time for HB to bring an application to the Tribunal for his entitlement to remuneration to be revisited. This is particular so as there was an application before the Tribunal at the time from SD for HB to be replaced as administrator with one of the grounds being that he was charging SMD for performing his work as administrator when he did not have an entitlement to do so.
55. [55]
    Instead, HB continued to perform work which was being charged by him through AB Chartered Accountants time cost system to SMD without the rendering of any tax invoices. Once SD gained access to the books of SMD & Co Pty Ltd, he made application to the Tribunal for the interim order which was consented to by HB, the effect of which was that HB could not make any payments from SMD or the company in payment of his work as administrator. The Tribunal appreciates HB’s cooperation in regard to the order made by Judge Kingham.
56. [56]
    As mentioned above HB attempted to settle all of the outstanding issues with a deed which would create a trust, even up payments made to family members, and obtain family agreement as to the fees payable to AB Chartered Accountants. The Tribunal notes that this was on the basis of a $50,000.00 discount to the fees outstanding. The deed was subject to Tribunal approval in regard to the fees and other issues. The fact that this deed would defeat SMD’s testamentary intention by depriving her estate of any assets by way of gift would have always been a major hurdle and the Tribunal would have more than likely not approved the deed. The making of a will is a special personal matter,^[5] which should not be interfered with. Any disappointed beneficiary would also have had rights for compensation under s 60 of the GA Act.
57. [57]
    HB did not make an application in regard to fees and expenses until it was clear that the deed would not proceed. It may be if he had made this application at the appropriate time the situation would have been different. The material before the Tribunal makes it clear that when HB accepted appointment without requiring remuneration he anticipated that all matters of dispute had been resolved and that there would only be limited tasks involved in being administrator for SMD. Clearly, that was soon dispelled and the time to make the application for remuneration to ensure that there was an entitlement when clearly fees were being incurred would have been some time in late 2010. Prior to SD’s application. The fact that the billing was being carried on through the company probably meant that HB did not perceive the need to make the application.
58. [58]
    HB’s understanding of the issues involving SMD’s children is made clear in the financial management plans filed by him in the Tribunal. He states in the plan filed on 26 August 2010 that:

A report on SMD affairs would not be complete without providing some insight as to the internal fighting between her and her children. Bluntly these problems seem to be based on issues revolving around money, and which of the children may have been favoured over the others over past and recent years.

59. [59]
    He further states in the financial management plan filed on 31 March 2011:

His concern in regard to establishing a permanent residence for SMD and the lack of cooperation of the family in assisting in dealing with personal issues for her. He states all positive actions he has sought to take in dealing with property and assets of SMD and SMD & Co Pty Ltd have been criticised and thwarted by WJ and SD. Immediate plans were put on hold pending the outcome of a compulsory conference. He states it is pointless to incur costs and determine a course of action if his role as administrator is not to continue.

60. [60]
    HB’s statement of 18 November 2012 sets out that he did not know and could not have known that his appointment would involve a considerable amount of work arising from the following:

    1. Ongoing demands for money from SF and the impact of SF’s precarious financial position upon SMD on an emotional level;
    2. Litigation in the Magistrates Court and Supreme Court initiated by SD;
    3. An entrenched position in relation to the overseas bank accounts on the part of WJ;
    4. Conjecture over his right to deal with the overseas properties and bank account etc;
    5. Difficulties in relation to SMDs overseas assets arising from the allegations made by WJ in relation to SA and his alleged intention to sell the London apartments;
    6. The family’s inability to work together in relation to arrangements for the sale of the three houses in Barokee Street, including clearing the houses to get them ready for sale;
    7. Conjecture over whether SA holds a valid current lese over the Wurtulla property;
    8. Disagreement of some family members as to whether SMD should be supported in her request to holiday in London and visit her properties there with the assistance of her son SA;
    9. An absence of family agreement as to what should be done with SMD’s personal assets housed in her company’s three properties at Barokee Street;
    10. Ongoing arguments about who actually holds SMD’s jewellery;
    11. Ongoing arguments about who should be allowed to hold a Nan Patterson portrait of SMD;
    12. Ongoing arguments about assets removed from Barokee Street by various family members prior to his appointment;
    13. Continual threats of an application being made to have him removed as SMD’s administrator; and
    14. The application for my removal as SMD’s administrator made by SD and the ensuing litigation arising from that application.
61. [61]
    It is clear that HB had a difficult time undertaking his role as administrator and there was many demands and little cooperation from SMD’s family. The last item in regard to the application for his removal appears from a perusal of the tax invoices to have resulted in much of the fees in the last period of HB’s administration. This does not appear to represent a financial matter^[6] as defined in the GA Act and administrators are clearly appointed for financial matters.^[7] Therefore, that which is not of a financial nature should not be charged to SMD. There has not been any specific submissions in regard to an amount which should not be allowed and therefore the Tribunal will not consider the question further.
62. [62]
    Clearly HB understood that there were some items for which he could not charge as he stated that he spent an average of two hours per week dealing with matters which he did not charge such as:

    1. Meeting with SMD to discuss her welfare;
    2. Accommodation matters;
    3. Personal expenditure;
    4. Health and wellbeing issues; and
    5. Family matters.
63. [63]
    Most of these items represent matters in regard to personal decisions which would concern a guardian and not an administrator and so HB had no right to charge for these. It was also identified by Vincent’s that there was a number of attendances recorded by HS for meetings with HB where he did not record time and that in the period between October 2011 and November 2012 this amounted to $20,195.00, This point was raised by Mr Freeburn for HB as showing that his claim for remuneration was fair and reasonable as he had not claimed for all of the time he could. Whether or not HB charged for his time it should have been recorded. Mr Haley of Vincent’s noted that it is not possible to accurately determine the extent of work where HB and HS both attended. This then calls into question the accuracy of the record in regard to their being a meeting. Mr Liddy for the Public Trustee submits also that remuneration should be confined to payment of the administrator doing work in relation to a financial matter.
64. [64]
    The total amount of remuneration claimed by HB for the period 1 October 2011 to 9 November 2012 is $52,144.21. The question then is, is this amount fair and reasonable having regard to the matters in s 48(2) and the general principles.^[8] HB stated in his affidavit of 13 December 2012 that:

Apart from the fact AB Chartered Accountants staff and I have spent over 1,200 hours on SMD and SMD & Co Pty Ltd’s affairs over the last 2 and half years, the files take up over 30 ring bound volumes. Some of the sub-issues, but by no means all, include:

1. (a)
   Off-shore account – held in Guernsy and HSBC account in the United Kingdom, and the difficulties trying to negotiate with these banks, and WJ access to these accounts;

2. (b)
   UK Apartments – apartments held in the UK and again HB’s attempt to negotiate an outcome with WJ that would enable a sale of these assets;

3. (c)
   SMD’s position as a shareholder of SMD & Co Pty Ltd in context of the Barokee Street properties – SMD’s matrimonial home and surrounding properties are owned by the company. SMD had a strong wish to return to live in her former home which involved a consideration of the cost of renovating the properties;

4. (d)
   SMD position as a shareholder in SMD & Co Pty Ltd – Taxation issues – at the time of taking over SMD’s affairs she and her late husband had not lodged taxation returns for themselves for several years. Serious taxation consequences could have potentially flowed to SMD as a result of dividends/ drawings taken by her as, her late husband and the children from the company. It was essential her tax position receive specialist attention in conjunction with consideration of the affairs of the company;

5. (e)
   SMD’s affairs and litigation taken by SD in the Magistrates Court – claim made against SMD and the company in regard to various debts claimed to have been paid by SD on SMD’s account;

6. (f)
   SMD’s affairs and Supreme Court action taken by SD – in October 2011 SD filed an application seeking disclosure of various documents by the company. Compliance would have involved the disclosure of documents related to SMD’s personal affairs and lawyers were retained to respond to the application;

7. (g)
   SMD’s affairs and SF – at the outset of the administration, SF’s emotional and financial state posed urgent and difficult concerns for HB. Well documented that loan was made to SF. This issue required a good deal of attention and caused difficulties and conflict with his siblings.

8. (h)
   SMD’s affairs and various other points of difference between the offspring – Demands by various children that other children must account back to SMD for monies allegedly taken by them from SMD. A need to identify gifts and assistance given to various children and whether the children should account back to SMD. A lack of information regarding these transactions and differing accounts provided by the children. A need to consider very significant tax consequences for the company and for SMD flowing form these gifts/loans.

1. (i)
   Negotiations with and between the children – over the past year, 2012 HB attempted to mediate and negotiate a settlement between the children with the aim of bringing to an end the many legal issues that impact upon SMD’s affairs. This has been with a view to curtailing the prospect of spiralling litigation between the parties and to try to contain legal costs that SMD & Co Pty Ltd and SMD would otherwise incur. A negotiated settlement was also extremely important to SMD’s affairs for certain tax reasons set out in previous affidavits. It was difficult and time-consuming trying to bring about a consensus between the parties. He considered that these efforts were appropriate and worthwhile and that enormous benefit would have flowed to SMD and her children. These efforts achieved a consensus between three of the four children and hopefully negotiations may form an underlying plank for further negotiations between them.

10. (j)
    HB states he has not included matters concerning the company in which there was a crossover with SMD’s affairs and those of SMD & Co Pty Ltd, that list would be substantial. His appointment was made against the background of the already highly litigious and volatile set of circumstances with SD having taken proceedings against the company, SMD and some of his siblings. His understanding was that all of the children had legal qualifications and the despite the mediated outcome reached by the parties, the litigation had heightened the intense animosity between some of the offspring. SD had incurred $110,948 in legal costs and SF incurred $184,466 in legal costs at approximately the point at which he was appointed, Clearly there is nothing basic about this family matter.

(k) Some of the SMD family siblings do not think basic courtesies apply to them. They cancel meetings at the last minute causing wasted expense and inconvenience. Some change their mind. Some go back on their word. Some of them say things that they won’t commit to writing, and then write that are completely contrary to what they have previously said, or what they have agreed to in telephone calls or meetings.

(l) The family were well aware of HB’s charge out rate, and that of his colleague, HS at the time he was appointed. The spirit of the arrangement is clear from the transcript. There was no intention on my part to work for free. It was made clear to all parties prior to his appointment that he was a semi-retired and not a full time-consultant.

(m)  This is the most unpleasant and difficult family assignment I have taken on in my many years of practising. AB Chartered Accountants actually have a charge rate applicable for more difficult or unusual assignments, which is 10% higher than our usual rates. Had he known what this job would entail, he would have quoted that higher charge rate in the first instance rather than my standard fee rate. This is simply not a $10,000 a year job. To compare it to a basic administration is quite unfair.

65. [65]
    As mentioned above there is no doubt that having regard to the assets of SMD and the family dynamic, that the work performed by an administrator for SMD would be complex. SA in his submissions noted that while the AB Chartered Accountants costs were high, they would not be as high if other family members did not behave in the way they have. He stated that HB is a person with impeccable credentials who has had to endure the most astonishing conduct and vilification by other family members, and yet has persisted to try to achieve a sensible resolution to this matter. No independent administrator would carry out this service for free, particularly in these circumstances.
66. [66]
    SD made submissions that HB was informed and accepted prior to his appointment that pursuant to s 48(1) of the GA Act he was not entitled to remuneration. He has continued to assert that he was not charging for his work and HB’s own affidavit demonstrate that he has been charging. SD also raised issues in regard to items being charged by HB which do not seem to have anything to do with ‘complex financial matters’ for which he says HB was appointed. The Tribunal notes that HB was appointed administrator for all financial matters.
67. [67]
    The Public Trustee of Queensland in its submissions of 28 November 2013 stated regard should had to the hourly rate charged by HB’s which was at the higher end of that which an administrator would usually charge. Noting the Public Trustees hourly rate was $213.20 per hour including GST. That it is an issue as to whether the hourly rate claimed is appropriate in respect of all the activities undertaken by HB having regard to their complexity. It was submitted for HB that this sort of comparison is not required by s 48 as the requirement that it be not more than the remuneration payable to a trustee company had been removed.
68. [68]
    The Tribunal disagrees, the question cannot be answered in a vacuum. If work of a similar nature is being performed for more or less by another administrator then that is a relevant factor in determining what is fair and reasonable. In further submissions, HB’s hourly rate was compared to other accounting professionals and the rates of managers and senior managers at Perpetual. It is noted that his rate was similar to that of a manager at Perpetual.
69. [69]
    Work should be performed by someone at the appropriate level which would be reflected in a particular charge out rate. In the case of an administrator, only the administrator has the authority of the Tribunal to deal with an adult’s financial matters.^[9] That is to say the decisions in regard to those matters. The administrator may have others engaged to carry out those decisions by doing such things as paying bills, which have been authorised by the administrator. Therefore, the charge out rate for the administrator should be commensurate with the overall level of responsibility required in respect of administering the affairs of the particular adult in question, in this case SMD.
70. [70]
    The Tribunal is satisfied having regard to SMD assets, the fact that they were held in multiple jurisdictions and the dynamics of dealing with SMD’s family that HB’s charge out rate was appropriate.
71. [71]
    Mr Liddy, in his final submission on behalf of the Public Trustee of Queensland had regard to the decision in Ability One Financial Management Pty Ltd & Anor v JB by his tutor AB.^[10] He submitted that it is as important that the administrator should be clear about their intention to charge fees at the time of their appointment or soon after and that appropriate disclosures should be made to the Tribunal.
72. [72]
    This is of course the issue raised by SD, that there was no mention of the charging of fees and he inferred an undertaking that fees not be charged. In fairness to HB it was that disclosed fees would be charged for work in respect of SMD & Co Pty Ltd which would include crossover work and these fees were regularly disclosed to the Tribunal as mentioned above. The question of whether those fees are maintainable is one for the Supreme Court of Queensland.
73. [73]
    When fees could no longer be charged through SMD & Co Pty Ltd by HB there were no further tax invoices issued. This was of course ensured by the action taken by SD in having an order made against HB paying further fees.
74. [74]
    The time of the appointment of the liquidators would have been an appropriate time to deal with fees. HB though choose to try to resolve all family issues including fees in the deed which ultimately failed.
75. [75]
    The Tribunal has considered the case of Gray v Hart,^[11] in regard to HB’s fees. In this case, the charging of the fees by the company was disclosed and no fees have been charged to SMD personally pending this decision. That decision while being salutary to professionals considering entering into administration arrangements is not applicable here.
76. [76]
    HB has during the period in question performed work as administrator for SMD, which he has not otherwise been able to receive remuneration due to the liquidation of the company. He is not a relative or friend of her and has no personal interest in assisting her. He was carrying on a business and anticipated that he would be entitled to remuneration for his services. He has not charged for work which he did not consider was of a financial nature. Much of what he did was in regard to various litigation brought be family members, in trying to gain control of family assets and then trying to finally solve all of the family problems. His task was complex and difficult. SMD had substantial assets both here and overseas, in the order of $6,366,957 as at 31 March 2011. Her personal assets were $2,066,947 and $4,300,000 represented the shares in SMD & Co Pty Ltd.
77. [77]
    Having regard to all of the factors and in the circumstances here the Tribunal is satisfied that HB is entitled to remuneration for the period 1 October 2011 to 9 November 2012 and the fair and reasonable amount of that remuneration is $52,144.21.
78. [78]
    The Public Trustee of Queensland is ordered to pay HB the amount of $52,144.21 within 14 days in respect of his remuneration as administrator for the period 1 October 2011 to 9 November 2012.

Is HB authorised to enter the conflict transaction being the client agreement with AB Chartered Accountants, dated 1 July 2010?

79. [79]
    The Tribunal may authorise a conflict transaction under s 152 of the GA Act. The Tribunal in doing so has regard to the general principles in accordance with s 11 of the GA Act. The Tribunal may retrospectively authorise a conflict transaction in accordance with the decision in Perpetual Trustees v Thompson.^[12]
80. [80]
    Following his appointment, HB entered an agreement with AB Chartered Accountants on 1 July 2010 in relation to services to be provided by AB Chartered Accountants to him in his capacity as administrator for SMD. The engagement included the provision of services for SMD as follows:

    1. Accounting, taxation and forensic advise,
    2. Financial, litigation and administrative support in dealing with your administrators role,
    3. Attending to financial matters including paying company accounts as required,
    4. Assistance in managing assets
    5. Assistance with providing reports to QCAT or the Supreme Court as required.
81. [81]
    Work was scheduled to commence immediately, and was to be performed as required, and advised by HB.
82. [82]
    AB Chartered Accountants current hourly charge out rates (excluding GST) were set out as:

    1. Director $420.00 per hour
    2. Manager $265.00 per hour - $330.00 per hour
    3. Accountants $135.00 per hour - $235.00 per hour
83. [83]
    The rates did not include outlays. Fees were to be billed monthly or as otherwise agreed. The letter states that the file was being managed by HS. An acknowledgment accompanies it which states that HB has read the letter and terms of trade, and accepted the terms and conditions on behalf of SMD & Co Pty Ltd though he signed as administrator for SMD.
84. [84]
    HB made application to the Tribunal for a direction under s 138(1) of the GA Act that he pay the expenses incurred by him as administrator for SMD, being professional and administrative services performed by AB Chartered Accountants as follows:

    1. The amount of $75,890.78 for the period June 2010 to September 2011; and
    2. The amount of $123,452.31 for the period 1 October 2011 to 9 November 2012.
85. [85]
    The Tribunal notes that tax invoices were issued by AB Chartered Accountants to SMD & Co Pty Ltd for the period June 2010 to September 2011 and paid by SMD & Co Pty Ltd in respect of the amount of $75,890.78. The entitlement that AB Chartered Accountants has in respect of the payment made by SMD & Co Pty Ltd is again a matter for the Supreme Court of Queensland in respect of the fees paid for that period.
86. [86]
    An administrator is entitled to reimbursement from the adult of the reasonable expenses incurring in acting as administrator.^[13] The expenses being claimed here by HB were incurred under the agreement with AB Chartered Accountants and there is a threshold issue as to whether or not the Tribunal was required to authorise that agreement as a conflict transaction.^[14] If the agreement is a conflict transaction and the Tribunal does not authorise it then HB had no authority to enter it as administrator for SMD and will then have no right to reimbursement of expenses incurred by him under the agreement.
87. [87]
    The Tribunal notes, that it was HB’s letter to the family of SMD dated 25 August 2010 which set out his and HS’s hourly rate that first caused SD to raise concerns about fees being paid to AB Chartered Accountants and ultimately formed part of the reason why SD made an application to have HB removed as administrator.
88. [88]
    While it is clear that there was discussion at the original hearing on 27 Amy 2010 in regard HB charging fees through his role as administrator of the company there was never any mention of other partner’s of AB Chartered Accountants charging fees and in the material disclosed to the Tribunal in the accounts and financial management plan the fees disclosed related to fees invoiced to the company and not SMD.
89. [89]
    The Tribunal appointed HB as administrator, it did not appoint AB Chartered Accountants and there can be no delegation of HB’s role. He may obtain assistance in carrying out his role for example in preparing tax returns or the financial documents required by the Tribunal or indeed in carrying out his decisions such as in paying bills previously authorised by him. It would be expected though that where he has an hourly rate of $420.00 or $450.00 per hour plus GST that his secretarial support would be built in to that costs as with any other professional carrying out their role. A client of a lawyer is not charged for the cost of having a letter typed.
90. [90]
    Therefore, it is necessary that the role of AB Chartered Accountants be well defined and that any work which is performed be performed at an appropriate level in terms of seniority and therefore cost. The Tribunal notes that the hourly rates of Directors, Managers and Accountants were disclosed on the client agreement between AB Chartered Accountants and HB. It would have been expected that the work performed was performed by persons at different levels as delegated by the partner in charge of the file. Whereas all of the work no matter how menial was performed by HS charging $420.00 or later $450.00 per hour plus GST.
91. [91]
    It was submitted for HB that s 37(2) of the GA Act defines a conflict transaction as one where there is a conflict between the duty of the administrator towards the adult and the administrator’s personal interests and another duty of the administrator. The example of a conflict transaction given in s 37(2) is where an administrator buys the adult’s car. It is contented that, by retaining AB Chartered Accountants, HB was entering into a conflict transaction and no explanation of the conflict is given. HB is not a partner of AB Chartered Accountants. He is a consultant who works two days a week. He, in effect, retained his employer firm. That happens almost every day. Liquidators are appointed by the Supreme Court, However they retain their accountancy firms because a professional liquidator needs the secretarial, office, stationery and professional staff offered by a form. It has never been said that such an arrangement is a conflict transaction. And, if it was, what is the conflict? What duty to SMD conflicted with why other duty or personal interest of HB? If there is conflict involved it is a conflict of the most ethereal kind, the case of NMB^[15] was cited as a similar case where authorisation was given, the conflict ought to be authorised pursuant to s 37 of the GA Act.
92. [92]
    It was earlier submitted for HB that:

It cannot be a conflict situation for HB to:

1. (i)
   Charge for his professional time, or to do so through his employer AB Chartered Accountants; or

2. (ii)
   Engage his firm, AB Chartered Accountants to carry out some of the work necessary for the administration of SMD’s affairs;

3. (iii)
   How can a conflict possibly arise when HB, for example, seeks tax advice from specialists within his firm, or seeks the assistance of other staff when he is away from the office?

4. (iv)
   There is, in reality, no conflict and no reason why HB and AB Chartered Accountants should not be paid the proper professional fees.

93. [93]
    The Tribunal notes that in NMB, a solicitor who was appointed attorney under an enduring power of attorney made application to the Tribunal for authorisation to enter a client agreement with the firm of which he was partner for fees to be charged for his work as attorney as well as services to be provided by the firm where there was no conflict clause in the document. It was decided that it was in the adults best interest to authorise such a conflict transaction. That case is therefore authority that in like circumstances to this one the entry of the agreement constitutes a conflict transaction.
94. [94]
    The Public Trustee made the submissions in regard to the payment of AB Chartered Accountants’ fees by HB. It was submitted that the Tribunal ought to consider these issues:

    1. Whether the engagement of AB Chartered Accountants did represent a conflict transaction within the contemplation of s 37 of the GA Act; and
    2. Whether the transaction required the authority of the Tribunal (that is, the entry into the contract with AB Chartered Accountants).
95. [95]
    HB stated that since the Tribunal hearing on 24 October 2011:

It has been necessary for him to continue to use the services of AB Chartered Accountants for professional and administrative assistance in administering SMDs affairs. Without AB Chartered Accountants’ support it would be impossible for him to attend to the workload this appointment has generated. I am contracted to work for AB Chartered Accountants two days per week. Apart from that, he holds a number of board positions, which require him to travel often and to spend considerable time on the affairs of the companies he acts for. He believed that it was in SMD’s best interests for him to retain AB Chartered Accountants to provide those services because AB Chartered Accountants was already providing services in relation to the administration of SMD & Co Pty Ltd. In addition, because AB Chartered Accountants staff were aware of the many complexities of the matters in dispute it would have been impractical and far less effective to seek assistance form other accounting firm.

96. [96]
    HB has been at pains in his material to provide reasons as to why work was required to be performed by HS a partner of AB Chartered Accountants, from a perusal of the fee narrations the vast majority of work charged by AB Chartered Accountants was performed by HS and that matters could not be dealt with by junior staff.
97. [97]
    The Public Trustee submits that the transaction is a conflict within s 37 of the GA Act as the engagement by the administrator was with an entity with whom the administrator had a business relationship. The administrator is likely to be personally liable to AB Chartered Accountants for the engagement, but the issue that attends the Tribunal is whether the administrator is entitled to pay the funds from SMD’s account or direct the Public Trustee to make such a payment.
98. [98]
    SD noted in his submissions, that the services that HB retained his firm for are obligations of HB, that even the most menial work such as bill paying is charged at $450.00 per hour, that HB only works two days a week and on other occasions he simply has HS perform his work and that HS then charges for telling HB what she has done.
99. [99]
    Mr Haley in the audit report prepared by Vincent’s gave the following opinion in regard to the work performed by AB Chartered Accountants:

1. (a)
   Given the nature of the matter and the acrimonious relationship of the family I consider that if HB was not available to deal with the administration (as he was not working full time) it was prudent to have another partner of AB Chartered Accountants attend to the file. Therefore I do not consider it unreasonable that the work billed by AB Chartered Accountants except for that performed by HB was performed by a person at the level of the person who performed the service.

2. (b)
   Whilst HB was not working full time and delegated much of the day to day work associated with the administration. I do not consider he delegated the major decisions regarding the financial affairs of SMD and the company.

100. [100]
     The fact here is that the engagement by HB of AB Chartered Accountants has through virtually all of the work being carried out by a partner of the firm resulted in HB charging $52,144.37 for him undertaking his decision making role as administrator and then him wanting to be reimbursed for paying AB Chartered Accountants the sum of $123,452.31 for carrying out those decisions during the same period. One would expect the work generated by the decisions to be carried out at a much lower rate and therefore result in much less cost. That would be part of the requirement for the administrator to act honestly and with reasonable diligence to protect SMD’s interest by ensuring that the costs of carrying out his decisions were modest.
101. [101]
     The Tribunal notes the wording of Vincent’s ‘if HB was not available it was prudent to have another partner attend to the file’. This is not a matter where AB Chartered Accountants has been engaged to provide accountancy or tax advice to a client. HB is a Tribunal appointed administrator and cannot delegate his role, it is not with respect to a file.
102. [102]
     HB seems to be under the impression that because he was a consultant working two days a week for AB Chartered Accountants that this had some bearing on him performing his duties as administrator, it had none. If he was not available then it would have been permissible for someone to take a message so that he could contact the caller when he was available. If he had made a decision then someone of the appropriate level such as a secretary should have typed the letter or paid the bill.
103. [103]
     The fact that SD was being asked to deal with HS who was not appointed administrator and had no actual authority was one of the root causes of the situation that resulted in SD’s application to remove HB.
104. [104]
     HB was a consultant to AB Chartered Accountants and had been its managing partner. AB Chartered Accountants and HS can be considered to be persons in a close business relationship with HB and he had a duty to SMD under s 35 of the GA Act to act honestly and with reasonable diligence to protect her interests. The interests of AB Chartered Accountants and HS are to obtain fees for work performed under the agreement with HB. HB’s duty to SMD can be summed up as to ensure that any fees are reasonable as is required under s 47 of the GA Act.
105. [105]
     For this to occur the person rendering the service would need to be at the appropriate level and that was not the case in respect of the work performed by AB Chartered Accountants. While there was clearly a great deal of conflict there is nothing to say that because someone is a tax partner in a firm they are better able to deal with that conflict than someone else at a lower level. They are remunerated at $420.00 per hour for their specialist knowledge and when they do that work they are well entitled to payment for that work. No-one would see it as reasonable to say that a person who expects to be paid $420.00 per hour should be used for a purpose where another person was well able to deal with the work. To say that bill paying and file maintenance in the context of the SMD family dynamic required a partner of a firm to perform the work does not bear consideration.
106. [106]
     If the Tribunal were to consider a conflict transaction such as this where it was contemplated that a person at the same charge out rate as the administrator would be performing work which could and should have been performed by persons at a lower charge out rate and the work involved some delegation of the administrators role it would not be approved.
107. [107]
     HB was on notice from the time that SD made his application that the payment of fees to AB Chartered Accountants was contentious. This crystallised when the Tribunal made an order that he not pay further fees to AB Chartered Accountants. A prudent administrator would at that point have re-assessed the situation and avoided incurring costs which he might not be able to be reimbursed for. HB did not do this. The fact that he has incurred a large expense to AB Chartered Accountants is unfortunate but is no reason to consider that the fees should be allowed if they are otherwise not allowed.
108. [108]
     The Tribunal though must make its decision in the interests of SMD and it is not in her interests to allow a conflict transaction, which has resulted in the accumulation of unnecessary charges for work, which either should not have been done or should have been done by a person at an appropriate charge out rate.
109. [109]
     The Tribunal is satisfied that the entry by HB of the client agreement with AB Chartered Accountants on 1 July 2010 was a conflict transaction. The Tribunal is also satisfied that the conflict transaction should not be authorised. The Tribunal orders accordingly.

Direction under s 138(1) for reimbursement by HB of fees payable to AB Chartered Accountants

110. [110]
     The Tribunal having determined that the entry of the client agreement by HB with AB Chartered Accountants is an unauthorised conflict transaction there is then no entitlement to reimbursement as the expenses cannot be considered reasonable if they are as a result of an unauthorised transaction. The Tribunal notes that this order does not relate to the payment of fees prior to 1 October 2011 as those fees were billed to and paid by SMD & Co Pty Ltd. The Tribunal orders that HB is not entitled to reimbursement from the funds of SMD for any expenses incurred by him under the client agreement with AB Chartered Accountants for the period form 1 October 2011 to 9 November 2012.
111. [111]
     If the Tribunal had approved the conflict transaction then the fees which would have been allowed would have been adjusted to reflect the submission of The Public Trustee that officers of the Public Trustee of Queensland perform similar work at the rate of $213.20 per hour inclusive of GST. The work allowed would not have included any work which represented delegation by HB or work which should have been performed by a lawyer (as that cannot be remunerated unless it is performed by a lawyer).

Costs

112. [112]
     SD has made an application that he be paid his costs in particular as HB after having fought the application for his removal as administrator resigned at the final hearing on 22 November 2012. Mr Dickson for HB noted that s 127 of the GA Act deals with costs. Section 127 states that each party is to bear their own costs except as against an applicant in exceptional circumstances such as the application being frivolous or vexatious.
113. [113]
     The Tribunal does not see any reason to depart form the normal rule that each party bear their own costs. SD is the applicant in the review application so it does not assist him. HB obtained an award in his application for payment of remuneration and so that can hardly be seen as frivolous or vexatious.
114. [114]
     Each party is to bear their own costs and HB’s costs in the application are his personal costs.