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TC QCAT 48
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
TC  QCAT 48
In an application about a matter concerning TC
Guardianship and administration matters for adults
30 January 2019
6 December 2018 and 8 October 2018
NOTICE OF INTEREST IN LAND
been lodged for each property held by the adult.
HEALTH LAW – GUARDIANSHIP, MANAGEMENT AND ADMINISTRATION OF PROPERTY OF PERSONS WITH IMPAIRED CAPACITY – ADMINISTRATIONANDFINANCIALMANAGEMENT – review of appointed administrator – where administrator has not complied with Tribunal Orders – where complex financial affairs – whether administrator is competent
Guardianship and Administration Act 2000 (Qld), s 12, s 31, Schedule 4
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 114
APPEARANCES & REPRESENTATION:
TC, represented by Rebecca Anderson ADA AC, TS
REASONS FOR DECISION
- The Tribunal initiated a review of appointment of AC (“the administrator”) as Administrator for his father TC, when the administrator failed to comply with the Orders 4 and 7 of the Order of 6 February 2018, which required that the administrator:
- (a)submit an updated financial plan before 6 May 2018; and
- (b)give advice to the Registrar of Titles of the administration appointment over TC’s interest in land for any property registered in TC’s name before 6 May 2018.
- The matter went to hearing on 8 October 2018. At the request of TC’s representative, the matter was adjourned in order for the administrator to provide an updated financial management plan.
- Prior to the hearing, conflicting communications were received from the administrator. The Registry of the Queensland Civil and Administrative Tribunal received communication from the administrator on 13 June 2018 that he did not intend to continue in the role and would not be lodging the requisite notices nor financial management plan. In file notes of this conversation with registry staff the administrator described TC as controlling his own assets and impossible to deal with. He advised that he sought to withdraw for the appointment and would be filing the necessary paperwork to do so. On 13 June 2018, his email addressed to the Tribunal advised that he was withdrawing from the administration role as TC was disrespectful and controlling and he was unable to properly act in this role. He was advised that he needed to complete a form 12 to formerly seek approval for withdrawal. This form was never received and at the hearing of 8 October 2018, AC advised that he sought to continue in the role of administrator.
- Registry file notes dated 8 August 2018 record a conversation where the administrator asked registry staff whether, if he sent the requested information, the review hearing would be cancelled.
- On 24 August 2018, TC contacted the Registry requesting cancellation of the review hearing “as everything was now good with [AC]”. On 24 September 2018, TC advised the registry that AC was having difficulty doing the financial management plan as Macquarie Bank did not recognise the Tribunal Order. He also stated that his solicitor had advised him that he needed a litigation guardian to be appointed.
- TC has complex financial affairs, which include extensive debt across multiple assets and court orders or sizable amounts, and the issue of a bankruptcy notice, a matter which has not been ultimately resolved. When this matter first came before the Tribunal, on 8 May 2017, the Tribunal appointed to Public Trustee of Queensland as administrator for all financial matters. After some months, TC’s brothers sought to be appointed as administrators, however they subsequently withdrew the application and AC sought instead to take on the role. On 6 February 2018, upon the application of AC for the removal of the Public Trustee as TC’s administrator, the Tribunal appointed AC as administrator for all of TC’s financial matters. The Tribunal made orders for the provision of an updated financial management plan to be provided within three months and for the Registrar of Titles to be given notice of the appointment on any of TC’s interest in land, and the Tribunal to be notified that this had been done through receipt of the lodgement summary for each of the properties. Records of this hearing indicate that the Tribunal found AC more appropriate than the Public Trustee in circumstances where there was an antagonistic and non-cooperative relationship between TC and the Public Trustee.
- The Financial Management Plan dated 12 January 2018 that was submitted with AC’s application was not approved at this hearing, and he was ordered to lodge an updated Financial Management Plan within three months of this hearing.
- At this hearing AC was informed of the obligations of an administrator under the Guardianship and Administration Act 2000 (Qld) (GA Act), and AC signed that he had been specifically informed of his obligations to act in a timely manner, to act in
compliance with the Tribunal’s Order, to lodge an updated financial management plan by 6 May 2018, and provide notice to the Registrar of Titles of his appointment by this same date.
- The Tribunal conducted a review of AC’s appointment as administrator at hearings of 8 October, and the further adjourned hearing of 6 December 2018, under section 31 of the GA Act.
- Section 31 specifies:
- (1)The tribunal may conduct a review of an appointment of a guardian or administrator (an “appointee”) for an adult in the way it considers appropriate.
- (2)At the end of the review, the tribunal must revoke its order making the appointment unless it is satisfied it would make an appointment if a new application for an appointment were to be made.
- (3)If the tribunal is satisfied there are appropriate grounds for an appointment to continue, it may either—
- (a)continue its order making the appointment; or
- (b)change its order making the appointment, including, for example, by—
- (i)changing the terms of the appointment; or
- (ii)removing an appointee; or
- (iii)making a new appointment
- (4)However, the tribunal may make an order removing an appointee only if the tribunal considers—
- (a)the appointee is no longer competent; or
- (b)another person is more appropriate for appointment.
- (5)An appointee is no longer competent if, for example—
- (a)a relevant interest of TC has not been, or is not being,adequately protected; or
- (b)the appointee has neglected the appointee’s duties or abused the appointee’s powers, whether generally or in relation to a specific power; or
- (c)the appointee has otherwise contravened this Act.
Are there appropriate grounds for the appointment to continue?
- To determine this question, the Tribunal must be satisfied TC’s circumstances continue to meet the criteria for appointment of an administrator contained at section 12 of the GA Act:
- (a)TC has impaired capacity for the matter; and
- (b)there is a need for a decision in relation to the matter or TC is likely to do something in relation to the matter that involves, or is likely to involve,
unreasonable risk to TC’s health, welfare or property; and
- (c)without an appointment—
- (i)TC’s needs will not be adequately met; or
- (ii)TC’s interests will not be adequately protected.
- In a report dated 25 January 2017 authored by Dr Trevor Lotz, TC’s treating psychiatrist of 17 years, Mr Lotz notes TC has schizophrenia which onset in 2000, and in his view he is incapable of managing his financial affairs. He stated the view that TC was unable to make decisions freely and voluntarily, and is often psychotic. He considered TC was unable to participate in a discussion about his decision-making capacity, but could participate in a discussion about appointment of another person to make decisions on his behalf. In Dr Lotz’s medico legal report of 27 November 2014 relevant to other proceedings, he noted that TC had a severe psychiatric disorder, with auditory hallucinations, persecutory delusions and often dissociative episodes, and his condition affected his capacity to understand legal issues and deal with them, and to act for himself in these matters. There is no contradictory evidence before the Tribunal.
- The Test for capacity is outlined at Scheduled 4 of the GA Act and specifies:
“capacity”, for a person for a matter, means the person is capable of—
- (a)understanding the nature and effect of decisions about the matter; and
- (b)freely and voluntarily making decisions about the matter; and
- (c)communicating the decisions in some way.
- Dr Lotz’s evidence indicates that TC cannot make decisions freely and voluntarily, arising from his diagnosed psychiatric condition, and is not able to understand the nature and consequences of legal and financial decisions. The Tribunal is satisfied that TC has impaired capacity for dealing with his financial matters.
- Documentation on the Tribunal file, together with the record of previous hearings, indicates that there are extensive complex financial decisions to be made in relation to debts and that TC is at risk of bankruptcy where a bankruptcy notice has been issued. Information is before the Tribunal that TC owns several properties, each of which are heavily indebted, and that that debt recovery action has been initiated by at least two mortgagees.
- Real property owned at Olsen Avenue, Arundel, (“Cherwood Lodge”); Tobemory St, Merrimac; Whitian Drive Cararra is secured by mortgages to Westpac and Macquarie bank according to the administrator. Augusta Court Coombabah is also owned and mortgaged. Rental income is received on some or all of these properties. Correspondence from HWL Ebsworth dated 5 May 2017 suggests that a power of sale action has been initiated by Perpetual over TC’s properties located at Whitian Drive and Onyx Court.
- Court orders have been made in relation to debts owed to the Gold Coast City Council of $171,363.73, and a further debt of $139,753 owing to the Gold Coast City Council is specified in the administrator’s financial management plan of 6 November 2018. Judgement against TC for $55,427.99 and a Costs Order for $10,782.30 have been issued in favour of the Body Corporate of Cherwood Lodge for outstanding body corporate fees and legal costs.
- The administrator’s financial management plan submitted 6 November 2018 states a picture of $1,427,350, plus $2,175.33 in bank funds; and liabilities of $1,986,927.92, with income of $3,806.20 made up of Centrelink pension of $826.20 and rental income of $3,806.20, and stated expenses of $3,592.88.
- The Tribunal is also aware from the reports of the previous administrator that there is a Centrelink Debt for $47,586.67 (at 9 November 2017) and the interim appointee’s submissions at hearing of 8 May 2017 of a longstanding debt to the Australian Tax Office (“ATO”) for unpaid taxes which dates back to prior to 1990 which are not noted in the plan.
- The Tribunal finds that there are decisions to be made in relation to the management of TC’s financial affairs, including management of assets and debts, and legal matters arising from this, and without the appointment of an administrator to deal with these complex decisions of financial and legal nature, TC’s interests will not be adequately protected. Therefore, the Tribunal is satisfied that there continues to be appropriate grounds for the appointment of an administrator.
Is the appointee competent; or is another person more appropriate for appointment?
Providing the financial management plan
- In the Tribunal hearing of 6 May 2018, the administrator was ordered to provide a detailed financial management report before 6 May 2018. At that hearing, the Public Trustee of Queensland’s solicitor specified that time was of the essence in actions with regards to the administration of TC’s finances. Since no clear proposal had emerged from the unapproved financial management plan dated 12 January 2018, and in light of the extensive debt and active recovery action by multiple entities, it was therefore important that the Tribunal had information about the administrator’s proposals for action.
- The administrator did not provide this within the timeframes specified by this order. At the hearing of 8 October 2018, the administrator stated that he was unable to provide the Tribunal with an updated financial management plan because he did not have sufficient information from Macquarie Bank. He stated that this matter was before the Financial Ombudsman and he was unable to do anything until that matterwas finalised. As the Macquarie Bank debt accounts for only two of the outstanding liabilities, the Tribunal did not accept this submission as basis for delay in providing the ordered document. Rebecca Anderson from ADA advocated strongly that the Tribunal adjourn the hearing so she could assist the administrator to provide the outstanding report. The Tribunal acceded to this request.
- Ultimately, the financial management plan was submitted on 6 November 2018, signed by AC on 16 October 2018. The Tribunal has identified a number of concerns with this plan. The document falls short of a comprehensively expressed plan for management of TC’s debts and legal issues and further discussion about the plan was necessary at the hearing to clarify proposals for the same.
- Item 2 of the financial management plan requests a summary of steps taken since appointment. The administrator identifies management of day-to-day matters but provides no indication of steps to address outstanding legal and debt related matters. Given the advanced stage of debt recovery action, the risks to the assets and exposure to bankruptcy, a clear documented statement of actions is necessary. This is not documented before the Tribunal despite this being clearly requested in Item 2.
- TC’s creditor, the Body Corporate for Cherwood Lodge located at Olsen Avenue Labrador (also known as Arundel) through their solicitors – OMB Solicitors, approached the Tribunal with concerns that the administrator failed to act for an 8- month period upon appointment in relation to the debt TC owed to them. In submissions dated 5 October 2018 (but received after the hearing of 8 October 2018), they advised of a debt owing to them of $80,428.44 for body corporate levies, as well as interest and costs. They noted that they held judgement for $55,427.99, and a costs order of $10,782.30, with interest accumulating. The correspondence stated that they were aware Commonwealth Bank had commenced proceedings on 26 June 2017 seeking to exercise power of sale under the mortgage. They advised that as at 5 October 2018, no steps had been taken by the administrator to resolve the issues with the Body Corporate debt. OMB provided a copy of correspondence addressed to the administrator dated 15 May 2018, advising of their several attempts to contact him, informing him of the debt owed at that date and notifying him of their intention to proceed with seizure and sale of the property if debt is not paid. It is noted that failure to respond would result in an application for enforcement warrant to seize and sell the property to enforce the debt.
- In failing to act in a timely manner, the administrator is in breach of section 35 of the GA Act: the obligation to act diligently. It is noted that this inaction has had the effect of interest accumulating on the debt. OMB’s comments that a Commonwealth Bank action as seeking to take action on their secure interest, but the Tribunal has not been informed any mortgage held by this bank. The administrator has orally informed the Tribunal on 8 October 2018 that Perpetual/Macquarie Bank are mortgagees over this land and this matter is one of two before the Financial Ombudsman. The Tribunal has no information to suggest that OMB’s information is to be preferred over the administrator. It is not apparent that the notice of interest in land has been lodged in relation to these premises.
- The financial management plan submitted 6 November 2018 indicates that the administrator noted this debt is as $78,211. Payment plans are stated to be recently offered, yet not in place as yet. No explicit plans for dealing with this is identified beyond the very broad statement contained at Item 6 of the Plan, “Great progress will
now be made due to being able to fully understand his financial position.” Clarification of such plans was sought at hearing. The administrator stated that accountants and solicitors had been briefed and a proposal for debt repayment had been reached. No details around the specifics of these arrangements have been provided to the Tribunal. The administrator has been given ample opportunity to inform the Tribunal of his plan for managing these decisions. While some progress appears to have commenced, the Tribunal is concerned about the administrator’s inaction on this issue for some 8 months.
Disclosure of financial position in financial management plan
- The administrator’s financial management plan does not indicate which property is secured by which mortgage, nor identify repayments or rental income attributable to each property. This makes it difficult to identify the appropriateness of payment arrangements or complete financial position. According to the previous administrator's detailed budget as at 9 November 2017, each of these properties are tenanted and receive rental income. This is not broken down in the plan.
- It is not apparent how TC’s Centrelink income remains a reliable source of income in circumstances where the rental income may exceed income test eligibility requirements. It is unclear whether disclosure obligations have been met. The administrator informed the Tribunal that Centrelink had been fully informed. This is a relevant consideration in terms of the budgeted costs and ability to service repayments into the future.
- The Plan does not identify the full picture of TC’s debts. Debts owing to Centrelink and the ATO are not disclosed, despite the administrator stating contradictory positions during the hearing about his awareness of the same. Ultimately the evidence indicates that the administrator was aware of these debts, including a large ATO debt, but has not disclosed these in his plan. He orally stated at hearing that he would seek to deal with these after the other debt matters had been dealt with. In oral evidence, the administrator has identified this debt as a sizeable amount, but did not respond to questions about whether the tax office had initiated debt recovery action.
- The Tribunal is concerned that the administrator has been less than frank around these debts, providing contradictory evidence in the hearings about his awareness of these debts. The apparent disregard of these debts in the plan suggests the administrator may not appreciate the significance of these matters in developing a comprehensive plan to deal with debt recovery and legal issues arising from this. The Tribunal considered without clear disclosure of the full financial position there are questions about the administrator’s competence to fulfil the functions of the role in accordance with obligations under the GA Act.
Complete picture of status of legal matters
- Item 6 of this plan asks the administrator to identify legal matters which need to be addressed. In his written response, the administrator makes no mention of actions regarding power of sale, matters before the Financial Ombudsman, bankruptcy notices or the nature of payment plans to respond to any debt recovery actions which are apparent from the previous administration. References throughout the document are vague and non-specific:
Financial Management Position has been made by the accountant a fortnite (sic) ago. This will help the two outstanding issues, one with the body corporate and the other with the Gold Coast City Council. Legal representative will be in contact with both parties to resolve this issue in the next fortnight.
- At hearing, he clarified that offers have been exchanged around settlement of debt and are awaiting further response. While this appears to be a step forward, significant delay has occurred in taking this preliminary step.
- Previous proceedings identified that Gold Coast City Council had issued a bankruptcy notice in relation to its outstanding debt. The administrator orally advised that negotiations are in place through legal representation in relation to offers.
- Correspondence from Perpetual to TC dated 5 May 2017 is before the Tribunal about actions toward a power of sale being initiated over Whitman Drive Carrara. There is no information before the Tribunal about the current status of this. The administrator orally suggests that this matter is before the Financial Ombudsman, in a holding pattern, but no indication of this has been given in the financial management plan. The Public Trustee when appointed as administrator expressed the view that it was not appropriate to object to the power of sale being exercised, as the applicant could not generate sufficient income to be able to retain these assets. The administrator did not share the view that assets should be sold but has not provided the Tribunal with a clear indication of how this is sustainable. The financial management plan discloses$1.43million in assets and $2million in debt, with no articulated plan as to how to service and manage these debts. The provided figures fail to discoes the ATO and Centrelink debts. TC’s fortnightly income is a Centrelink pension ($826.20) and rental property income ($2,980). It is unclear whether the Centrelink disclosure obligations have been met and whether this total income is reliable into the future. The absence of a stated budget to manage the debts is a source of concern to the Tribunal.
- In oral evidence on 8 October 2018, the administrator informed the Tribunal that three properties mortgaged to Macquarie were involved in litigation, including Whitian Drive which he stated was $40,000 in arrears. There is no indication of this in the financial management plan submitted, but a statement at item 5.1 that two Westpac mortgaged properties are paid up to date. In oral evidence on 5 December 2018, the administrator advised that he was not aware of a power of sale action being initiated over Whitian Drive, which is in contradiction to evidence given on 8 October 2018. The Tribunal notes correspondence before it from HWL Ebsworth dated 5 May 2017 issuing a Notice of Exercise of Power of sale which notes a power of sale. While it is apparent that these matters are in a dispute process, there is no identification of this on the financial management plan. In oral evidence on the 8 October 2018, the administrator referred to “Arundel Drive” being mortgaged to Macquarie and a subject of dispute before the Financial Ombudsman. He later clarified that he was referring to Olsen Avenue, (Cherwood Lodge), as the relevant property, subject to the dispute. The third property, at Onyx Court Carrara has been sold by Macquarie exercising their power of sale under the mortgage. The information put to the Tribunal to provide a clear picture of the progress of the administrator in managing these complex issues has not been clearly offered to the Tribunal, and has generated an unclear picture of actions taken by the administrator.
- The financial management plan does not account for ongoing body corporate fees payable on Olsen Avenue Arundel. It does not identify how much will be payable forongoing council rates over TCs’ property, and no budget for this is identified. The plan states that shortfalls in these costs are met by family members. No identification is made of who meets these, how much is met and whether this is ongoing. In light of the generation of the Body Corporate debt for non-payment of levies, this unsupported statement does not give confidence that these costs have been adequately factored into TC’s budget.
- This plan does update the Tribunal that Macquarie Bank (Perpetual), has exercised power of sale over the property at Onyx drive Carrara. The administrator under Order 8 of the Order dated 6 February 2018 was required to inform the Registrar of Titles if the property changed hands and provide a copy of the order to the Registrar. There is no evidence this has been complied with.
- At the hearing of 8 October 2018, the administrator informed the Tribunal that the costs component in relation to the power of sale over Onyx Rd Carrara was being disputed and was awaiting listing in the Financial Ombudsman’s service. The administrator advised that there had been no outcome in relation to this and no date provided.
Proposals to manage advanced debt recovery
- The financial management plan proposes that all assets will be retained and the administrator argues that payment arrangements will satisfy outstanding debts, and family will meet other costs of living should TC fall short of being able to meet these. The administrator has not demonstrated in the financial management plan or in oral evidence how TC's identified income of $3,806.30 per fortnight will satisfy the outstanding debts of in excess if the $1,986,927.92. He does not contemplate how these payment arrangements will be satisfied, and has been unspecific about offers that have been made to the various creditors. In particular, the administrator discloses regular expenses of $3,592.88. In the absence of a clear statement of payment plan arrangements for the debts being pursued, as well as these regular expenses, the Tribunal has insufficient information before it to be satisfied that the proposal contained in the financial management plan is in TC’s best interest.
- The only evidence of specific payment arrangements before the Tribunal is correspondence from Westpac to TC of 22 August 2017 which identifies that repayment plans for outstanding mortgage arrears of $2,425, and $2,060 per month are in place, but this correspondence is not specific over which properties these debts relate to respectively. On 6 March 2018, one month after the administrator's appointment, the latter of these payment arrangements fell into arrears. His plan identifies that the repayments on the Westpac mortgages have been maintained.
- Of particular concern to the Tribunal is the failure to comply with the Tribunal’s Order in relation to the notices of interest in land ordered. The plan indicates that 4 properties are held in TC’s name currently. Only one notice of interest in land lodged with the Registrar of Titles on 18 June 2018 has been sent to the Tribunal affecting Lot 65 on RP 178499 in Local Government Area of the Gold Coast. There is no evidence before the Tribunal that The Registrar of Titles has notice of the administrator’s appointment over the remaining three properties. This is despite the administrator signing a statement at the hearing that he was aware of his obligations to do so before 6 May2018 and discussion on 12 June 2018 with the Registry noted at paragraph 2 and 3 above, acknowledging this requirement. Such omission is in breach of Order 7 of the Order of 6 February 2018.
Legislative obligations upon the administrator
- The administrator is subject to the following provisions of the GA Act:
- (a)Under section 21, the administrator must give advice to the Registrar of Titles of their appointment. The administrator has not provided this advice in relation to all property registered in TC’s name.
- (b)Under section 35, the administrator must act honestly and with reasonable diligence:
A guardian or administrator who may exercise power for an adult must exercise the power honestly and with reasonable diligence to protect TC’s interests.
- The evidence described above indicates that there has been a significant delay on action in relation to the Body Corporate debt, and the provision of a financial management plan to the Tribunal.
- Section 36 of the Act obliges the Administrator to Act as required by terms of tribunal order:
A guardian or administrator who may exercise power for an adult must, when exercising the power, exercise it as required by the terms of any order of the tribunal.
- Orders 4, 7 and 8 of the Order of 6 February 2018 have not been complied with, and the administrator is in breach of section 36 of the GA Act.
- Section 31(5)(c )of GA Act indicates that an appointee is no longer competent where they have contravened the GA Act.
- The Tribunal notes the administrator’s statement on 5 December 2018 that he does not “digest his father’s finances or inspect every cranny” of these. This statement concerns the Tribunal where advanced stages of creditor actions exists. Without a transparent and comprehensive picture of his position legal and financial position and all issues confronting him, the effectiveness of the proposal remains unclear.
- Overall, the documented plan does not sufficiently identify how debts will be managed and the status of legal issues will be dealt with beyond broad aspirational statement about a payment plan. Oral evidence to supplement this indicates that there are some steps in place to negotiate payment arrangements but specifics of this are not disclosed to the Tribunal. This means that there is no means to evaluate the affordability of the payment arrangements proposed. In the absence of a comprehensive budget of regular income expenses and specific repayment plans the Tribunal has been unable to see how the plan’s proposal specifically addresses ongoing ability to service all debts and manage debt recovery action. The administrator does appear to be engaging accounting and legal professionals to deal with these issues, but no specific information about the outcomes of advice received
is documented. The administrator’s oral evidence suggests that offers have been put in relation to payment arrangements and they are awaiting responses. TC’s full financial position however has not been clearly put before the Tribunal, and there are omissions of key ongoing expenses where the provided picture of TC’s debt position omits Centrelink and ATO debts.
- While there has been some progress made toward managing the debts through obtaining legal advice and seeking payment plans, the delays and non-compliance with the Tribunal’s Order suggest AC is not competent to continue the role. AC is removed from the role of administrator and the Public Trustee shall replace him in the absence of an alternative proposed appointee.
- Rebecca Anderson, of ADA, made submissions that TC’s mental state is at risk should the Public Trustee be reappointed. There is no medical evidence provided in support of this statement. Ms Anderson argued that the appointed administrator has made progress and may need direction. While the Tribunal notes this submission, it is apparent that the administrator has disregarded Tribunal orders and delayed taking action for significant periods. These delays have had implications on the interest component of debts owing, and have occurred when it was clearly apparent that timely action has been essential to manage growing debt.
- It is noted that the Public Trustee of Queensland has previously informed the Tribunal that it had difficulty working with TC to obtain information about TC’s full financial position. It would appear that this information is now available through AC, and he is directed to provide the incoming administrator with all information he has about his father’s current finances, and legal matters. The Tribunal makes this direction pursuant to section 114 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- Published Case Name:
- Shortened Case Name:
 QCAT 48
30 Jan 2019