HRV[2021] QCAT 395

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   HRV (hereinafter called “the mother”) is 96 and now resides permanently in a care facility in another country. PK (hereinafter called “the daughter”) is her biological daughter and one member of her mother’s complicated family structure which includes many biological and non-biological children.
2. [2]
   Up until April 2019, the mother lived in a Queensland property.  The mother’s assets also included interests in two other countries. However, in this jurisdiction, her assets were limited to one house and contents and a small amount of savings.
3. [3]
   The daughter was appointed attorney for her mother under a Queensland Enduring Power of Attorney dated 6 January 2018 for financial, personal and health matters.
4. [4]
   The mother required hospitalization in March 2019 and left Australia permanently in early April 2019.
5. [5]
   On 2 May 2019 the Public Guardian of Queensland (the “OPG”) suspended the daughter’s powers as attorney after an investigation undertaken by that office. 
6. [6]
   On 1 August 2019 this Tribunal appointed The Public Trustee of Queensland (the “PTQ”) as administrator for the mother for all financial matters.  No guardian was appointed as, by that time, the mother no longer resided in the jurisdiction.  Although the PTQ was then the administrator for the mother, that office did not attend that hearing.
7. [7]
   The first hearing attended by the PTQ occurred on 23 September 2019 where the existing administration order was refined by this Tribunal to remove the responsibility for day-to-day finances and the overseas pension received by the mother from the PTQ’s appointment.
8. [8]
   In 2020, protracted and highly conflictual legal proceedings were occurring in another jurisdiction between the mother’s family members about property rights and the mother’s Will.  The daughter was represented in these proceedings by lawyers in the overseas country.
9. [9]
   As part of these proceedings and despite the limited assets held in Queensland, the PTQ alleges during 2020 the overseas lawyers made many requests for information from the PTQ to aid their client in those proceedings.  The PTQ says these requests were made in unreasonable and unrealistic timeframes, with threats of commencing proceedings in this jurisdiction if the PTQ did not comply.
10. [10]
    The PTQ alleges these numerous requests amounted to an abuse of process. 
11. [11]
    The daughter has the opposite view.  She says the PTQ failed to answer her reasonable requests as attorney for her mother and that she was forced to appoint her current Queensland solicitors to pursue the information the overseas court required of her.
12. [12]
    The transcript of the proceedings before this Tribunal on 23 September 2019 establishes that Barry Nilsson solicitors represented the daughter at that hearing.  
13. [13]
    The “Schedule of Facts” annexed to the submissions of the daughter filed 17 August 2021 shows that on 19 February 2020, the overseas solicitors for the daughter made the first request to the PTQ for the provision of historical financial bank statements, trust deeds and/or statements concerning another overseas relative to be used in the overseas legal proceedings.  The overseas solicitors for the daughter alleged an informal direction was made by the QCAT member in the 23 September 2019 to the PTQ to undertake those investigations.
14. [14]
    The PTQ denies this assertion.  An examination of the file shows no formal direction was made by the member. A reading of the transcript from that hearing discloses no oral application for directions under s 138 of the Guardianship and Administration Act 2000 (Qld) (the “GAA Act”) made to the member.  The application before the member that day was a review of the plenary appointment of the PTQ.  Although the assets in Queensland under the control of the PTQ were simple, the whole financial arrangement appeared complex, stretching across 4 jurisdictions and involving significant family conflict.
15. [15]
    Pursuant to Section 28 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the “QCAT Act”), the Tribunal may inform itself in any way it considers appropriate, and must ensure, so far as it practical, that all relevant material is disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts. 
16. [16]
    Section 130 of GAA Act further provides that to hear and decide a matter “in a proceeding, the Tribunal must ensure, as far as it considers it practical, it has all the relevant information and material.  Further the Tribunal may order a person to give information or material to the Tribunal.” 
17. [17]
    This is an inquisitorial process.  Many matters can be canvassed at a hearing but generally this Tribunal is slow to fetter the discretion of an appointed administrator as this often leads to further applications as circumstances change.  
18. [18]
    I accept there was no direction made to the PTQ as alleged by the daughter to do anything other than administer the Queensland assets.
19. [19]
    On 7 August 2020 the daughter filed an application seeking the PTQ provide by 20 August 2020 a detailed report of all enquiries, investigations, dealings and transactions relating to either the mother or her property for use in the overseas litigation, to be filed. 
20. [20]
    The Tribunal issued directions and undertook several direction hearings after that date^[1] attempting to identify and narrow the issues and relevant parties in what appeared to be a confused intersection of litigation processes.
21. [21]
    On 1 November 2021 this Tribunal had what became the first of two hearings to deal with the original application by the daughter.  In the winnowing process of interlocutory directions made, the orders sought by the daughter had changed considerably.
22. [22]
    The first oral hearing achieved very little to assist clarifying the law upon which the daughter based her outcome sought – in particular, her reliance on the costs provisions in the QCAT Act and not the more specific provisions of the GAA Act. 
23. [23]
    At that hearing I made further directions to focus the attention of the daughter to the appropriate basis of her application. 
24. [24]
    After further submission were received from both parties, I was satisfied that the matter could be finalised with a further hearing on the papers pursuant to s 32 of the QCAT Act.  No objection was received from either party to that proposal.
25. [25]
    The issues now identified for which final orders are sought by the daughter are as follows:

    1. (i)
       reimbursement of the daughter’s reasonable expenses as attorney;
    2. (ii)
       reimbursement of the daughter’s legal costs;
    3. (iii)
       compensation for the mother for failures on the part of the PTQ in the administration of the mother’s Australian assets and dealings with the  daughter as the mother’s attorney; and
    4. (iv)
       The PTQ’s application for costs against the daughter.
26. [26]
    All of these fees would be paid to the daughter from the mother’s Queensland assets – after the now sale of her Queensland real estate.

Reimbursement of the daughter’s reasonable expenses as Attorney

The daughter’s submissions

27. [27]
    The daughter seeks to be reimbursed the amount of $71,787.82 being expenses she says she paid for on behalf of the mother while acting as her attorney, I will deal with each claim in turn.

Legal fees of $16,415.07 to overseas solicitors

28. [28]
    The daughter claims these fees as she submits it was necessary to instruct these solicitors to obtain appropriate accounting from the PTQ as the need for assets had become urgent to enable the mother to receive full time care overseas.  She submits all fees specifically and solely related to time spent liaising with the PTQ with respect to the mother’s assets - which were later required for court proceedings.^[2]  In particular, the daughter submits the Tribunal has the power to make a reimbursement order under section 138 of the GAA Act.^[3]
29. [29]
    In LER,^[4] the Tribunal considered that, in making such an order, the Tribunal must be satisfied that reimbursement is justified for the proper care and protection of the  mother. The Tribunal particularly noted in that decision that the application for which reimbursement is sought, ought not be brought for the purposes of the daughter obtaining a financial benefit.
30. [30]
    The daughter submits she engaged legal representation in her capacity as the mother’s attorney, to communicate with the PTQ and prepare and file an application on her behalf, following numerous attempts by her, and her legal representatives to engage with the PTQ to facilitate:

3. a.
   The expeditious sale of the mother’s Queensland property such to enable the mother’s Australian assets to be liquidated and moved overseas to enable the mother’s accommodation expenses to be met, where the mother’s overseas pension was being entirely depleted by these expenses;

3. b.
   The transportation of the mother’s chattels to her, in circumstances where the mother had repeatedly requested the return of her items for which she had a great emotional attachment; and

3. c.
   To obtain information as to the status of the mother’s assets and liabilities for the purposes of informing court proceedings in which major decisions were being made about the mother, her care, her Will and her assets.

31. [31]
    The daughter did not seek to challenge the PTQ’s appointment, nor prevent the PTQ from undertaking any duties or make any decisions on behalf of the mother.
32. [32]
    The daughter says the application was not brought for the purposes of advancing her interests. She only sought compensation for the mother - the return of the mother’s personal items for the mother’s wellbeing and an expeditious sale of the mother’s assets to ensure appropriate housing and support for the mother. 
33. [33]
    The daughter says the application was necessary to achieve the steps now taken by the PTQ on the mother’s behalf noting that:

    1. (i)
       the daughter had made consistent attempts to communicate with the PTQ in relation to the mother’s assets since October 2019, including with respect to the sale of the property;
    2. (ii)
       the application was made in circumstances where the PTQ had not provided sufficient information in relation to the mother, her assets and the steps they had taken in relation to those assets;
    3. (iii)
       the daughter’s solicitor first put the PTQ on notice of her intention to file an application in the Tribunal on 10 July 2021;
    4. (iv)
       the daughter filed the application on 6 August 2021.
34. [34]
    On 7 August 2021, the PTQ provided the daughter’s solicitor with a ‘Briefing Report’ outlining the actions undertaken by the PTQ to date and confirmation that the property would proceed to auction on 7 September 2020.
35. [35]
    On 11 August 2020, the PTQ provided the daughter’s solicitors with a statement of transactions and outlays incurred by the PTQ since their appointment.
36. [36]
    On 3 September 2020, the PTQ obtained a valuation of the property.
37. [37]
    The daughter submits that the legal expenses incurred by her were brought solely as an incidence of her appointment as attorney with respect to the mother’s personal and health matters, day to day expenses and overseas pension. The legal expenses were incurred in order to ensure that the mother was able to maintain sufficient housing, had appointed appropriate guardians and administrators in the overseas’ jurisdiction, had a Will that reflected her testamentary intentions (in circumstances where no other biological child was willing to participate in the proceedings) and had access to items of particular personal importance to her.

The PTQ’s submissions

38. [38]
    The PTQ counters that these submissions saying the fees were not for the benefit of the mother but for the daughter’s own benefit. In support of this contention the PTQ submits:^[5]

    1. (i)
       it is not true to say that when the daughter failed to obtain information from the PTQ, or that she was required to engage lawyers to obtain that information;
    2. (ii)
       the daughter had appointed lawyers well before the PTQ was ever involved in the matter (on 23 September 2019);
    3. (iii)
       on 2 May 2019 the OPG issued a notice of suspension against the daughter suspending her from being the mother’s attorney;
    4. (iv)
       the OPG investigated the allegation that the daughter had been restricting the mother from having contact with her family and friends. The OPG found that that allegation had been substantiated, and that the daughter’s conduct constituted elder abuse;^[6]
    5. (v)
       the daughter was represented by Barry Nilsson at the Ttribunal hearing held on 23 September 2019;
    6. (vi)
       on 4 November 2019, the mother’s stepson and son filed an application in an overseas court seeking an order for the mother to be relocated from the daughter’s house to a nursing home, and for their appointment as joint property managers for the mother for administration and all legal affairs in Australia and three other overseas jurisdictions;  
    7. (vii)
       the family alleged that since the daughter had relocated the mother in April 2019, the mother had become increasingly isolated from her family, and the daughter had restricted the mother from speaking to her family;
    8. (viii)
       the daughter resisted the orders sought in these proceedings. She was a party to those proceedings, not in her capacity as attorney for the mother, but in her own personal capacity;
    9. (ix)
       on 29 September 2020, an independent party was appointed as the mother’s property manager in respect of all property owned by her in that overseas jurisdiction;
    10. (x)
        these proceedings also involved the making of a new Will for the mother to decide how her estate was to be distributed upon her passing. The daughter’s own interests as a beneficiary were affected by that matter. On 25 January 2021, the court made an order reflecting the terms agreed between the parties (including the daughter) for a new Will for the mother.
    11. (xi)
        the court did not order that the daughter’s own legal costs be paid from the mother’s assets.
    12. (xii)
        in the daughter’s Application for Miscellaneous Matters filed in this proceeding, it was stated:

“The applicant seeks orders including that the PTQ as administrator be required to file with the Tribunal and serve on the applicant a detailed report outlining all enquiries, investigations, dealings and transactions relating to the mother and her assets since their appointment on 23 September 2019 until current. This information must be filed in the family court of … by 20 August 2020 for the purposes of proceedings in that court ...”

39. [39]
    The correspondence from the applicant’s overseas lawyers requested information and documents from the PTQ for the court proceedings.
40. [40]
    Further, the solicitors requested information pursuant to purported oral directions made by the Tribunal. When the PTQ asked for a transcript from the daughter evidencing the directions, she refused to provide that. The PTQ was ultimately required to spend the mother’s own funds to obtain a transcript of the Tribunal hearing of 23 September 2019. It was also required to refer the matter to the Office of the Official Solicitor to respond to the correspondence from the overseas solicitors. Ultimately, it has been proven in these proceedings that no such directions were ever made by the Tribunal.
41. [41]
    The PTQ was not a party to the court proceedings. At no time did solicitors ever obtain a direction in the court requiring the PTQ (as a third party) to provide information and documents for those proceedings.
42. [42]
    When the PTQ was appointed, the mother essentially had only three assets in Queensland – her property, some furniture and effects worth about $1000, and $50,000 in cash.
43. [43]
    Despite the mother having minimal assets, in the period between 19 February 2020 to 10 August 2020, the solicitors besieged the PTQ and the Official Solicitor with at least 36 aggressive emails requesting information and documents.  Timeframes were always unreasonable and on several occasions the requests were accompanied with threats that if the information was not provided within the short timeframes, the daughter would instruct lawyers to commence proceedings in Queensland.
44. [44]
    The PTQ submits examples of those threats are as follows:

    1. (i)
       in an email to the Official Solicitor sent on 9 July 2020, stated: “If full information is not provided by close of business tomorrow, we will be left with no choice but to apply directly to QCAT, with costs sought.”^[7]
    2. (ii)
       in an email to the PTQ sent on 10 July 2020, the solicitors stated: “All of these [items] are required by [the] close of business today. We have Australian lawyers ready to make formal application to the Queensland Court on Monday in the event that the PTQ fails to provide full reports today.”^[8]
    3. (iii)
       an email to the PTQ sent on 13 July 2020, the solicitors stated: “We will give you until 16:00 hours … time today to provide all requested outstanding information. If the information is not received, the Australian lawyers will be instructed to make the request to the Queensland Court with a costs order.”^[9]
45. [45]
    The information and documents were requested by the daughter to protect her own interests in the court proceedings.  The requests did nothing to advance the mother’s financial interests.
46. [46]
    The threats of commencing proceedings in the Tribunal were not made because there was any real delay or loss caused by the PTQ, but to illicit information from the PTQ within the short timeframes for the court proceedings in which the daughter had an interest.  That is also what triggered the daughter’s current application before the Tribunal.
47. [47]
    Notwithstanding, the PTQ responded to the requests for information within reasonable timeframes, even though:

    1. (i)
       the requests were excessive given that the mother had only 3 assets in Queensland (the property, some cash and limited household effects);
    2. (ii)
       the timeframes provided were unreasonable;
    3. (iii)
       the requests for information were aggressive and unprofessional; and
    4. (iv)
       the solicitors were seeking information to advance the daughter’s interests, not the mother’s;
    5. (v)
       the PTQ complied with its obligations to confer with the daughter. In fact, went over and above the legal requirements, given that the information was for the daughter’s own benefit and did not advance the mother’s interests whatsoever.
    6. (vi)
       there is no evidence before the Tribunal that the fees incurred by the daughter were for the mother’s benefit, or that they advanced her financial interests in any way.
    7. (vii)
       the PTQ never breached its duties in failing to provide information, nor did any financial loss ever occur.
    8. (viii)
       conversely, the daughter’s actions in instructing solicitors to send the PTQ excessive requests for information for her own benefit as a party in the court proceedings have depleted the value of the mother’s assets, given that the PTQ was required to engage lawyers to respond to the solicitors.
48. [48]
    In summary, the PTQ submits:

    1. (i)
       the requests for information and documents were not made as an incidence of the daughter’s role as attorney. In the relevant period, the daughter was only the mother’s attorney for day-to-day finances and her overseas pension;
    2. (ii)
       the information was requested for the daughter herself as a party to the court proceedings, which had been commenced due to the daughter’s own actions in relocating the mother to her home, and isolating the mother from her other family members;
    3. (iii)
       the PTQ was not legally required by the court to provide the information and documents as no orders had been made in the proceedings directing the PTQ (as a third party) to produce information and documents in that proceeding;
    4. (iv)
       the PTQ was not legally required by the Tribunal to provide the information and documents requested. The representations made by the daughter’s lawyers that the Tribunal had made certain directions to the PTQ were untrue;
    5. (v)
       while the PTQ was under an obligation to confer with the daughter, her requests for information and documents were excessive given that the mother only had 3 assets in Queensland;
    6. (vi)
       the daughters’ lawyers were not engaged by the mother in her capacity as the mother’s attorney because:

       1. the daughter was not legally authorised to engage both sets of lawyers on behalf of the mother – she was only attorney for day-to-day finances and the overseas pension;
       2. the daughter engaged her lawyers in her personal capacity;
       3. the legal costs were not incurred by the daughter as the mother’s agent; and
       4. at no time was the PTQ’s prior approval sought to incur costs on behalf of the mother;
       5. the requests for information were of no financial benefit whatsoever to the mother;
       6. conversely, the constant requests for information and documents were detrimental to the mother’s net financial position as significant costs were incurred by the PTQ in responding to the applicant’s lawyers, and to these current proceedings.

The daughter’s submissions in reply

49. [49]
    Finally on this item, the daughter says:^[10]

    1. (i)
       the allegation of abuse made by opposing parties in the previous QCAT hearings in September 2019 and more unfounded allegations of abuse and invented welfare concerns in the court proceedings had no basis in fact.  The daughter feels she has been under siege and constantly being bullied by multiple parties;
    2. (ii)
       the daughter voluntarily gave up legal right as EPA (financial/welfare) in Australia and the court as she and the mother’s other biological children also agreed that independent guardianship was the best way forward. It is mischievous of PTQ to imply that those legal rights were taken away, when this hearing on the papers is about the PTQ’s financial mismanagement;
    3. (iii)
       PTQ is incorrect when they state the daughter’s EPA was suspended;
    4. (iv)
       the daughter did not ask for costs in the agreement from court.

Discussion

50. [50]
    A copy of the PG’s Notice of Suspension was filed in this Tribunal on 2 May 2019.  This notice suspended the daughter’s authority to act as the mother’s financial attorney pursuant to s 34(4) of the Public Guardian Act 2014 (Qld).  The grounds for this suspension were that the daughter was suspected by the OPG on reasonable grounds, to be not competent and that a relevant interest of the mother had not been or was not being, adequately protected.
51. [51]
    I am satisfied that the daughter was in substantial dispute with other members of her family over arrangements for the mother and that although the assets held in Queensland were straightforward, the overall arrangements for the mother stretching across four countries were complex and conflictual.
52. [52]
    I am satisfied that the proceedings in the overseas court were of such a personal nature to the daughter that she litigated those matters in her own interests, in particular to defend family allegations and as a potential beneficiary under her mother’s Will. 
53. [53]
    I am not satisfied that the demands she made through her overseas’ solicitors were of advantage to the mother and find these demands only resulted in the diminution of the assets held here by the PTQ’s need to respond to repeated requests in often untimely and aggressive timeframes. 
54. [54]
    The mother’s assets in Queensland were straightforward and able to be described in three lines.  I have been satisfied there was no direction made to the PTQ as alleged by the daughter to do anything other than administer the Queensland assets.  The daughter also denies her suspension by the OPG.^[11]  Her memory of these events is either flawed or misguided.
55. [55]
    I am satisfied her reporting of overseas events will also be coloured by these concerns and that she has a view of the outcome of hearings that suits her narrative.
56. [56]
    I accept the submissions of the PTQ in relation to the motive for the request by the daughter’s overseas solicitors and the manner of their requests.
57. [57]
    I am satisfied reimbursement is not justified for the proper care and protection of the mother and that the daughter participated in the court actions for her own purposes including that of obtaining a financial benefit.
58. [58]
    the daughter’s claim for legal fees of $16,415.07 to overseas solicitors is denied.

Legal fees of $49,207.27 to Barry Nilsson solicitors

59. [59]
    Supporting her claim for these fees, the daughter says these solicitors were instructed to assist the daughter with the matter of her suspension by that office dated 2 May 2019.  The daughter says she sought Barry Nilsson’s assistance as attorney for the mother to seek that the PTQ be appointed to protect the Adult’s interests and assets.
60. [60]
    As I have found, this represents at the very least, a misunderstanding of the events as are evidenced by the documents produced to this Tribunal.  The OPG’s suspension notice appointed the PTQ by force of the legislation.^[12]  The daughter did not seek the PTQ’s appointment.  
61. [61]
    The starting point for parties’ legal costs under the GAA Act is that each party bears their own.^[13]  However an active party’s costs may be ordered but only in exceptional circumstances. Guidance for what constitutes broadly exceptional circumstances has been provided by the QCAT Appeals Tribunal.^[14]  In the Appeals Tribunal matter, the claim was rejected on the basis that:

    1. (i)
       the applications brought by the attorney were not brought as an incidence of her then role as attorney for the adult;
    2. (ii)
       the proceedings in fact sought to overtake the authority of the then attorneys for the adult. The attorney was seeking orders that a decision made by another attorney be circumvented by the Tribunal, and that she be appointed guardian and administrator for the adult;
    3. (iii)
       the legal costs incurred by the attorney were therefore not found to have been incurred by her as an agent for the adult; and
    4. (iv)
       the legal costs incurred by the attorney were her own responsibility and could not be paid from the funds of the Adult.
62. [62]
    In this matter, the daughter engaged solicitors to defend her actions as attorney in the face of adverse findings by the OPG. They were not incurred by her as an agent for the mother but to support her personal position and previous actions.  The Tribunal proceedings were not brought on behalf of the mother as an incidence of her then role as attorney but rather to defend her previous personal actions.
63. [63]
    I see no reason to depart from the general rule enshrined in s 127 of the GAA. I find no exceptional circumstances. 
64. [64]
    The daughter’s claim for legal fees of $49,207.27 to Barry Nilsson solicitors is denied.
65. [65]
    For the same reasons, I also deny the claim by the daughter for $2,437.00 she says were incurred by her for a third set of overseas solicitors in May and June 2019 while responding to the suspension notice. The daughter says legal fees incurred by the mother in relation to the application brought by the OPG in QCAT on 2 May 2019 (actually the suspension notice), requiring evidence to be provided in relation the mother’s health and capacity.   I see no reason why the daughter could not have sourced this information form the appropriate professionals herself.  

Reimbursement of the daughter’s reasonable expenses as Attorney

66. [66]
    The daughter claims a number of costs she says were incurred while acting as attorney for the mother.  I will now deal with each of these other claims. 

Taxi expenses

1. (i)
   the daughter claims $407.90 as taxi fares paid by her to transport the mother to and from various appointments including to hospital and to her bank on dates prior to her suspension.  I will allow this item.
2. (ii)
   For the same reasons, I will also allow the following claims

   1. Meals On Wheels expenses$347.06
   2. Engaging a Locksmith$250.00
   3. Purchase of vacuum cleaner $199.00
   4. Road Worthy Certificate$88.00
   5. Groceries$52.70
   6. Property repairs$130.00
   7. Travel expenses (2018)$822.00
   8. Travel expenses (January 2019)$489.00
   9. Travel expenses (April 2019)$942.62
3. (iii)
   Total allowed expenses$3,728.38

Compensation

The daughter’s submissions

67. [67]
    The daughter claims the estimated amount of $21,600.00 as loss of rental income on the mother’s Queensland property at $450 per week^[15] from October 2019 to October 2020 against the PTQ.
68. [68]
    The GAA Act provides that the Tribunal may order a guardian or administrator for an adult to compensate the adult for a loss caused by the appointee’s failure to comply with the GAA in the exercise of a power.^[16]
69. [69]
    An administrator stands in the shoes of the adult.  The administrator must exercise the powers in line with the General Principles^[17], act honestly and with reasonable diligence^[18] and for finances, apply the prudent person investment rule.^[19] An administrator must consult with other appointees or attorneys to ensure the adult’s interests are not prejudiced by a breakdown in communication between them.^[20]
70. [70]
    The daughter submits that the PTQ failed to comply with the GAA Act in exercising the power pursuant to section 33 by:

    1. (i)
       failing to act honestly and with reasonable diligence to protect the mother’s by failing to:

       1. sell the property within a reasonable time period following the appointment;
       2. obtain rental income from the property where a sale could not be efficiently achieved, and thereby preserving the value of the asset by prudent investment;
       3. otherwise invest the mother’s assets;
       4. consult with the daughter with respect to their administration of the mother’s financial affairs;
    2. (ii)
       Failing to apply the General Principles by:

       1. failing to acknowledge the importance of sending, and actually sending the mother her personal items which were of great significance to her and her enjoyment and comfort.
71. [71]
    The daughter submits that, had the PTQ acted with reasonable diligence to protect the mother’s interests, it would have:

    1. taken reasonable steps to sell the property following appointment in September 2019;
    2. otherwise leased the property to obtain rental income prior to sale; and/or
    3. made reasonable attempts to consult the daughter in order ensure the mother’s interests were not prejudiced by a breakdown in communication between them.
72. [72]
    The daughter further submits that, had the PTQ applied the General Principles, it would have taken reasonable steps to send the mother the furniture and effects as requested.

The PTQ’s submissions

73. [73]
    The PTQ denies that there has been any loss of rent for the following reasons: 

    1. (i)
       on one hand the daughter agrees that the property should have been sold. On the other, she alleges that it should have also been rented to a third party in the intervening period; 
    2. (ii)
       at all times, the PTQ was taking the necessary steps required to have the property sold; 
    3. (iii)
       in accordance with the prudent person rule, the PTQ was required to obtain a valuation of the property from a registered valuer, and financial advice confirming that it was in the mother’s interests to sell the property, and not to rent it out;
    4. (iv)
       the PTQ was required to clear out the property in preparation for it to be sold during restrictions imposed as a result of the COVID-19 pandemic;
    5. (v)
       in this matter, the PTQ was also required to carry out negotiations regarding the ownership of certain furniture items and chattels contained within the property;
    6. (vi)
       the above steps were undertaken as expeditiously as possible by the PTQ.
74. [74]
    Generally when the PTQ is appointed as financial administrator for an adult who has lost capacity:

    1. (i)
       the PTQ has never before sought to rent out a property owned by an adult in the intervening period while at the same time trying to sell it;
    2. (ii)
       the PTQ’s practice is to only to sell a property when it is vacant. Selling a property with a tenant in it limits the number of buyers for a property, thereby reducing the sale price that can be achieved;
    3. (iii)
       as most buyers require vacant possession at settlement, selling the property after it is vacant means that the PTQ is in a position to know before a contract for sale is executed that it will be able to provide vacant possession at settlement. In this way, the PTQ can ensure that the settlement date is not delayed, or the contract terminated with the buyer suing for damages;
    4. (iv)
       the sale of a property can be significantly delayed when a tenant refuses to vacate a property. The PTQ routinely encounters this situation when it takes over the financial affairs of an adult who has lost capacity and needs to have a tenant evicted before the adult’s property can be sold. In such a case, the PTQ is required to make an urgent application to the Tribunal for an order to terminate the tenancy and for a warrant of possession. The significant legal costs incurred in taking such action are required to be paid out of the adult’s funds;
    5. (v)
       in accordance with the prudent person rule, the PTQ would never rent a property without first obtaining financial advice that it was in an adult’s interests to do so;
    6. (vi)
       the PTQ has never received advice from a financial advisor indicating that it should rent out a property in the intervening period while in the process of selling it;
    7. (vii)
       under a standard general tenancy agreement, tenants seeking to rent a property usually seek a fixed term lease for a period of at least 6 or 12 months.
    8. (viii)
       such a lease would have delayed the sale of the property in this case. 
    9. (ix)
       to seek to have a tenant rent the property while at the same time trying to sell it would have been financially imprudent, and in contravention of the prudent person rule.

Discussion

75. [75]
    In her submissions on the issue of compensation, the daughter is, in essence: alleging that the time period taken to secure the mother’s property; receive financial advice concerning it to satisfy the prudent person rule; pack and store the contents, reach agreement with overseas family members as to ownership of the chattels;  ship the chattels out of the country; value the vacant property; and finally proceed with the necessary sales campaign culminating in a sale on 23 October 2020 where the price achieved was higher than the valuation, was too protracted.^[21] 
76. [76]
    From the date the PTQ was formally appointed as the mother’s administrator and could make longer term decisions on her behalf (realistically 23 September 2020), this represents a period of exactly one year.
77. [77]
    2020 was an unusual year because of the constraints of the current COVID pandemic. 
78. [78]
    It is unhelpful to me in deciding if this period of 12 months is unreasonably long sufficient to satisfy what is in effect, a dereliction of duty argument against the PTQ to simply make the allegation. 
79. [79]
    The daughter provides no cogent evidence of comparable periods of time in the circumstances of 2020 against which I can judge the administrator’s actions. 
80. [80]
    In the absence of such evidence, I accept the PTQ’s submissions that the practice is to only to sell a property when it is vacant as most buyers require vacant possession at settlement.  I accept that having tenant can significantly delay a potential sale and that the pool of potential buyers is limited if vacant possession is no provided.
81. [81]
    I accept the PTQ’s submissions that PTQ has never received advice from a financial advisor indicating that it should rent out a property in the intervening period while in the process of selling it and that to seek to have a tenant rent the property while at the same time trying to sell it would have been financially imprudent, and in contravention of the prudent person rule.
82. [82]
    Further the daughter submissions simply do not reach the required standard of proof to comfortable satisfy me that 12 months in the climate of 2020 was an unreasonable period.
83. [83]
    The daughter’s claim for compensation must fail.

PTQ’s claim for costs

The PTQ Submissions

84. [84]
    The PTQ seeks costs against the daughter in this matter pursuant to section 127(2) of the GAA Act in the sum of $34,921.36 being costs in relation to responding to overseas solicitors ($6,466.68) and the costs in relation to responding to the current application filed by the daughter ($27,389.34) and the cost of a transcript ($1,065.34).
85. [85]
    Again, the starting point for a parties’ legal costs under the GAA Act is that each party bears their own.^[22]  However s 127(2) gives this Tribunal discretion to pay an active party’s costs in exceptional circumstances, including if the Tribunal considers the application frivolous or vexatious.
86. [86]
    The PTQ submits The Macquarie Concise Dictionary (3rd edition) and the Macquarie Dictionary (revised edition) both define the word “vexatious” as:

“Adj 1. Causing vexation; vexing; annoying. 2. Law (of legal actions) instituted without sufficient grounds, and serving only to cause annoyance. - Vexatiously . adv, - vexatiousness, n”.

87. [87]
    The PTQ submits that the daughter’s application was vexatious for the following reasons:

    1. (a)
       as no financial loss was ever suffered by the mother, there was no basis for the Tribunal to make a compensation order against the PTQ;
    2. (b)
       the daughter never had any legal grounds to obtain an order that the PTQ pay her legal costs;
    3. (c)
       the daughter’s lawyers threats to commence proceedings for a compensation order and costs against the PTQ were not made because there was any legitimate claim, but in order to illicit information and documents within unreasonable timeframes;
    4. (d)
       by her own admission, the information and documents were sought by the daughter for the court proceedings (in which she was a party);
    5. (e)
       the purported Tribunal directions relied on by the daughter to request information and documents were fictitious;
    6. (f)
       the application was brought by the daughter to follow through on continued threats made by her lawyers, and was an abuse of process;
    7. (g)
       even when it became clear that the daughter’s claims had no legal basis, she has continued to pursue the matter by changing the relief sought several times;
    8. (h)
       the application was brought without sufficient grounds of success, and purely to cause annoyance and frustration to the PTQ.
88. [88]
    This is an application in which a costs order against the daughter is appropriate as it falls precisely within the circumstances contemplated by section 127(2) of the GAA.

The daughter’s submissions in reply

89. [89]
    The daughter submits no such exceptional circumstances arise in this case.
90. [90]
    In submitting this, the daughter relies on THV,^[23] where the Tribunal decided to exercise its discretion to order costs against the applicant on the basis that the applicant’s application for the removal of the administrator of her father’s assets was frivolous.
91. [91]
    In awarding costs, the member noted that:

“The Macquarie Dictionary defines frivolous as ‘being of little weight, worth or importance; not worthy of serious notice’. It could be considered that pursuing a matter in the face of overwhelming medical evidence to the contrary because of one’s own personal views, could be regarded as something not worthy of serious notice.”^[24]

92. [92]
    In BXE^[25], the same member considered whether exceptional circumstances arose such that he ought to exercise his discretion to award an active party’s costs as against the applicant.
93. [93]
    BXE filed an application in the Tribunal seeking the appointment of the PTQ as administrator for his mother and the revocation of the appointment of his sisters as his mother’s attorney. His sisters sought their legal costs of defending the application.
94. [94]
    The Tribunal considered whether the actions of the applicant were warranted in bringing the application against his sisters.
95. [95]
    The Tribunal ultimately elected to exercise its discretion to order the applicant pay some of the sisters’ costs, in circumstances where the application was brought in circumstances where the applicant was ‘dissatisfied’ that he was not part of the decision-making regime.
96. [96]
    It is submitted that, unlike THV and BXE referred to above, there are no ‘exceptional circumstances’ which arise in this case to warrant the exercise of the Court’s discretion to aware the PTQ’s costs be paid by the daughter. In particular, it is submitted that:

    1. (a)
       in both BXE and THV the Tribunal determined that the applicants were motivated by their own personal views and their desire to be in a position to make decisions with respect to the adult the subject of the Applications.
    2. (b)
       in contrast, the daughter does not seek to challenge the appointment of the PTQ, nor obtain any decision-making power with respect to the mother.
97. [97]
    The Application was brought in order to:

    1. (i)
       Compensate the mother for asserted failures on the part of the PTQ;
    2. (ii)
       Obtain directions for the PTQ to provide the daughter with certain information in her capacity as attorney with respect to the adult’s assets, which was subsequently provided by the PTQ;
    3. (iii)
       Facilitate the expeditious sale of the mother’s real property, which was subsequently undertaken by the PTQ; and
    4. (iv)
       Reimburse the daughter with respect to her legal expenses in undertaking the above.

Discussion

98. [98]
    On all of the grounds listed above, the daughter has failed in her application. Of her original claim of $71,782.62 for her costs and $21,600.00 for lost rent (a total of $93,382.62), this Tribunal’s order will be for the payment to the daughter of $3,728.38 being a small amount to reimbursement of outlays during the period prior to the daughter’s suspension as a financial attorney for the mother.
99. [99]
    However, the mother’s assets have been diminished by the PTQ’s costs quantified by the PTQ as $34,921.36.^[26]  The reimbursement of the outlays provided by this order could have been requested by the daughter from the PTQ by the production of the appropriate receipts to evidence their payment without the need for an application to this Tribunal. 
100. [100]
     The first oral hearing achieved very little in my understanding of the law upon which the daughter based the outcomes she sought – in particular, her reliance on the costs provisions in the QCAT Act and not the more specific provisions of the GAA Act.
101. [101]
     The orders now sought by the daughter are substantially different to those in the originating application. In effect, the daughter’s application has almost wholly failed.  I am satisfied that the daughter’s judgment in pursuing these claims in this jurisdiction was clouded by the events taking place overseas and the family conflict that continued, even after the mother left this jurisdiction to reside permanently elsewhere.
102. [102]
     The learned member in BXE^[27] stated

“What is exceptional is a matter of discretion and is to be considered on a case by case basis according to the facts and circumstances of the case. To be exceptional, the case has to be unusual or out of the ordinary” ^[28]

103. [103]
     Further as I explained in Re ERF^[29] (where an order was made for the payment of legal fees in circumstances where the applicant had benefitted the adult and where she had no pecuniary advantage from the proceedings):

“However the Tribunal should here sound a note of warning. This decision is in the view of the Tribunal appropriate for the extreme circumstances of this matter. It does not supplant the general direction contained in section 127 of the Act and should not be seen as a precedent in this regard. Each application will be judged on its own merits.”

104. [104]
     I am satisfied this application is out of the ordinary and to a large extent, unfounded.
105. [105]
     I am satisfied there was little or no merit to the daughter’s application and has resulted in a minimal outcome for her – and one which could have been resolved by direct contact with the administrator.
106. [106]
     I am satisfied that his application is exceptional in the circumstances sufficient to exercise my discretion to award the PTQ the costs sought in the amount of $34,921.36.
107. [107]
     From this figure I will set off the amount of $3,728.38 being the reimbursed expenses I have allowed. Rounded, this figure is $31,192.00
108. [108]
     The daughter will pay this amount to the PTQ within 28 days of the date of this order.