Re CRG[2024] QCAT 58

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Introduction

1. [1]
   This is a rehearing of an application for compensation. The application is brought on behalf of CRG by his current administrator, who is his step-father. It is brought against CRG’s former administrator, the Public Trustee. The application is under section 59 of the Guardianship and Administration Act 2000 (Qld) (‘Guardianship and Administration Act’).  That section said in subsection (1) (at the time the application was commenced):

A guardian or an administrator for an adult (an appointee) may be ordered by the tribunal or a court to compensate the adult … for a loss caused by the appointee’s failure to comply with this Act in the exercise of a power.

2. [2]
   In our decision, we have used the expression ‘the further application for compensation’ used previously by the tribunal to distinguish it from the application decided in CRG [2019] QCAT 168. The further application for compensation was heard by the tribunal in 2020 and was dismissed: CRG [2020] QCAT 153. On appeal, however, the Court of Appeal found error in the tribunal’s decision and remitted the application to QCAT for rehearing: TJ v The Public Trustee of Queensland & Anor [2023] QCA 158.
3. [3]
   Documents provided during the rehearing on 12 December 2023, exhibits 1-3, have since been incorporated into the tribunal’s file for CRG as documents H501 to H503.
4. [4]
   References are made in the reasons to the Guardianship and Administration Tribunal which was the predecessor to QCAT. References to H documents are to documents on the tribunal’s file for CRG (though some earlier documents were not assigned a number).

Background

5. [5]
   We will discuss the compensation claim in more detail later. However, for present purposes, it should be noted that a central argument of the current administrator is that the Public Trustee should have kept real properties purchased by CRG’s mother and aunt in 2003 when they were administrators. Then CRG could have lived in his own home and had the advantage, as a disability support pensioner, of having its value exempted under the social security assets test.
6. [6]
   The following background is undisputed unless otherwise indicated.
7. [7]
   CRG was born in 1982.
8. [8]
   On 21 December 2000, when CRG was 18, the Supreme Court appointed the Public Trustee as his administrator for sums paid under the settlement of a damages claim. In February 2001 the Public Trustee received the net settlement funds of $463,921. In May 2001 it received a further $35,375 for administration costs.
9. [9]
   The Public Trustee did not purchase any real estate for CRG. It invested the bulk of the funds in term deposits.
10. [10]
    In August 2002, CRG’s mother applied to the Guardianship and Administration Tribunal for a review of the appointment. She proposed that she and her sister be appointed administrators instead of the Public Trustee. On 13 December 2002 the tribunal removed the Public Trustee as administrator and appointed CRG’s mother and aunt as his administrators for all financial matters.
11. [11]
    The administrators used most of the remaining funds in two purchases of real estate for CRG:

    1. a unit at Maroochydore for $220,000 in July 2003; and
    2. bushland at Imbil – generally referred to as the bush retreat – for $88,000 in September 2003.
12. [12]
    CRG’s mother and her partner, the current administrator, moved to the unit in about September 2003. They did not pay rent but they say they contributed to other property costs. They stayed only a few months because the Public Trustee evicted them when it became administrator again.
13. [13]
    CRG spent only one night at the Maroochydore unit: that was in September or October 2003, when he stayed there ‘to get registered at Centrelink’^[1] before insisting on returning to Brisbane.
14. [14]
    CRG never lived at the bush retreat. There was no house there.
15. [15]
    In late 2003, CRG’s mother wrote a letter to her solicitors and the Guardianship and Administration Tribunal which discussed the plans of herself and her sister, as administrators, for the real properties. The letter was said to be on behalf also of the co-administrator and another sister. The letter was also signed by CRG.^[2] The letter was faxed in December 2003 but, judging from the contents, it was probably written a few months earlier. According to the letter, in summary:

    1. CRG had severe problems of substance abuse, and had been facing police charges;
    2. the family’s view was that the best approach would be for CRG to live in basic conditions in the bush supported by family members;
    3. the unit was a ‘solid investment outperforming other investment options’ but it was not appropriate for CRG at that time ‘given its easy access to paint, petrol and alcohol and transport to substance abuse centres (such as Sth. Brisbane)’;^[3]
    4. the administrators were purchasing the bush retreat which was 30 acres in area;
    5. they hoped to spend the remaining money on a shed, caravans, a tank and, if money was available, a dam;
    6. if CRG rejected the option of living there and continued ‘his lifestyle of inner-city substance abuse’,^[4] the land would always be there for him when he needed a rest;
    7. if CRG settled at the bush retreat with his aunt’s family, then the administrators would build a house there;
    8. that would be financed either by the sale of the unit or by taking out a loan and renting out the unit;
    9. the downside to the renting out option was that it would not free up funds to improve the bush retreat, but ‘weighed against this is rent collected from family members living at Imbil as well as a high growth rate in Sunshine Coast properties (aprox 3 times the loan interest rate)’;^[5]
    10. the plan meant that CRG:

‘… has, in the long and short term, the options of

• basic bush living
• comfortable bush living (house etc)
• comfortable urban, well serviced living (Maroochydore unit)’.^[6]

16. [16]
    On 9 December 2003, the Adult Guardian applied to the Guardianship and Administration Tribunal for a review of the administration appointment and it requested that the administrators be suspended.
17. [17]
    On 11 December 2003 CRG was released from prison on bail on condition that he live with his father. CRG had been in custody since 30 October 2003.
18. [18]
    On 12 December 2003 the Guardianship and Administration Tribunal suspended the appointment of CRG’s mother and aunt as administrators. This meant that the Public Trustee was taken to be administrator during the suspension.^[7]
19. [19]
    At that time, CRG’s assets consisted of the unit, the bush retreat, and $4,120.29 in funds. He had liabilities of $1,236.73.^[8]
20. [20]
    CRG’s mother and the current administrator wrote in a letter dated 20 February 2004 to the Guardianship and Administration Tribunal:

[CRG] was not homeless, in fact he had four homes. the unit at Maroochydore, a campsite at Imbil, [an aunt’s] house and Bowman Johnson hostel. The reason why [CRG] roams the streets and chooses to live in parks is not due to lack of opportunity. His mental health situation is a matter all together different from homelessness.^[9]

21. [21]
    On 8 April 2004 the Guardianship and Administration Tribunal revoked the appointment of CRG’s mother and aunt as administrators and instead appointed the Public Trustee for all financial matters. The Public Trustee remained administrator until 2017, though there was a period in 2009 and 2010 when the current administrator was appointed to manage CRG’s Centrelink payments while the remainder of CRG’s financial matters remained the responsibility of the Public Trustee. In 2017, QCAT removed the Public Trustee and appointed the current administrator instead as administrator for all financial matters.
22. [22]
    The Public Trustee rented out the unit from June 2004.
23. [23]
    CRG’s budgetary position varied in late 2004 to early 2005. In September 2004 he had a budget surplus of $94.23 per fortnight but this did not take into account rates and body corporate fees.^[10] In January 2005, when his accommodation changed, he had a budget deficit of $419.69 per fortnight.^[11]
24. [24]
    The Public Trustee sold the bush retreat in January 2005 for $160,000. It had been valued in January 2004 at $100,000.
25. [25]
    On 9 August 2006, Centrelink raised a debt against CRG for $15,500.56 for overpaid disability support pension in the period 3 December 2003 to 14 January 2006. Centrelink had paid the pension during that period under the mistaken belief that CRG was living in the unit.
26. [26]
    As at February 2007, CRG owned the unit and had almost $122,000 in funds. He had a budget surplus of only some $2 per fortnight.^[12]
27. [27]
    The Public Trustee sold the unit in June 2007 for $260,000. It had been valued at $265,000 in September 2006.
28. [28]
    CRG commenced living with his mother and the current administrator in July 2009 in Brisbane. He has remained living with them in Brisbane since then.
29. [29]
    When the current administrator became the administrator in 2017, CRG’s assets consisted of funds of about $87,000 according to the Public Trustee^[13] or $79,370.72 according to the current administrator.^[14] On either figure, there was too little to purchase real property.
30. [30]
    It is also relevant to note that for some periods, the Adult Guardian was appointed by the Guardianship and Administration Tribunal to make decisions about accommodation for CRG. These periods were 22 December 2003 to 8 April 2004 and 7 February 2007 to 18 August 2009.
31. [31]
    It is also relevant to note that Centrelink records indicate that CRG received benefits over a number of years, mostly in the form of a disability support pension (including from September 1999 to May 2001 and again from March 2004).^[15]
32. [32]
    QCAT in 2020 concluded that the Public Trustee had not failed to comply with the Guardianship and Administration Act, and so no liability for compensation could arise under section 59 of that Act.
33. [33]
    On appeal, the Court of Appeal concluded that in making the decisions to rent out the unit, sell the land, and sell the unit, the Public Trustee had failed to comply with two provisions of the Guardianship and Administration Act. The first was section 35 which requires an administrator to exercise a power honestly and with reasonable diligence to protect the adult’s interests. The second was general principle 7:

7Maximum participation, minimal limitations and substituted judgment

1. An adult’s right to participate, to the greatest extent practicable, in decisions affecting the adult’s life, including the development of policies, programs and services for people with impaired capacity for a matter, must be recognised and taken into account.
2. Also, the importance of preserving, to the greatest extent practicable, an adult’s right to make his or her own decisions must be taken into account.
3. So, for example—

1. the adult must be given any necessary support, and access to information, to enable the adult to participate in decisions affecting the adult’s life; and

2. to the greatest extent practicable, for exercising power for a matter for the adult, the adult’s views and wishes are to be sought and taken into account; and

3. a person or other entity in performing a function or exercising a power under this Act must do so in the way least restrictive of the adult’s rights.

4. Also, the principle of substituted judgment must be used so that if, from the adult’s previous actions, it is reasonably practicable to work out what the adult’s views and wishes would be, a person or other entity in performing a function or exercising a power under this Act must take into account what the person or other entity considers would be the adult’s views and wishes.

5. However, a person or other entity in performing a function or exercising a power under this Act must do so in a way consistent with the adult’s proper care and protection.

6. Views and wishes may be expressed orally, in writing or in another way, including, for example, by conduct.

34. [34]
    The Court of Appeal noted that the Public Trustee should have analysed and assessed all reasonably available options, including assessing consequences for CRG such as whether he would have his own residence and the implications for government entitlements. There was no evidence that the Public Trustee had undertaken this exercise when it made the decisions in question. Further, there was no evidence that the Public Trustee sought or even attempted to seek CRG’s views before making the decisions. The only evidence of consultation was with CRG’s father and step-mother in relation to the decision to rent out the unit. Otherwise, there was no evidence of consultation with CRG himself, or with his mother or aunt, notwithstanding that they as administrators had made the decisions to buy the unit and the bush retreat, and notwithstanding that his mother had been residing in the unit ‘providing a potential support network.’^[16] Nor was there evidence of consultation with other family members, CRG’s support network, or an Aboriginal support officer.
35. [35]
    In light of those failures, the Court of Appeal noted:

… an order for compensation may be made, pursuant to s 59 of the Act, for proven loss caused by that failure to comply with the Act, in the exercise of the power to make those decisions.^[17]

36. [36]
    In the rehearing, it was common ground that the Public Trustee failed to comply with legislative requirements in the ways identified by the Court of Appeal. The Public Trustee did not, for example, seek to introduce records that were previously lacking.
37. [37]
    It is also relevant to mention some other matters in respect of which the Court of Appeal did not find error.
38. [38]
    QCAT in 2020 had identified three components to the compensation claim:

    1. After being reappointed as CRG’s administrator on 12 December 2003, the Public Trustee failed to ‘investigate recovery action’ of the sum of $38,951.13 which the former administrators of CRG were alleged to have misappropriated from CRG’s funds. A claim of that amount, plus interest since 2004 is made.
    2. By failing between 2000 and 2002 to organise a purchase of a residence for CRG with his funds, the Public Trustee deprived CRG of the benefits of home ownership. A claim of $450,000 plus interest since 2000 is made.
    3. By renting out a unit owned by CRG in June 2004, by selling a bush retreat owned by CRG in January 2005, and by selling the unit in June 2007, the Public Trustee deprived CRG of these assets which were valuable to him both personally and financially. Claims of $160,000 plus interest since 4 January 2005, and $260,000 plus interest since 27 July 2007 are made.^[18]
39. [39]
    At the rehearing, the current administrator announced that he abandoned the component relating to 2000 to 2002.
40. [40]
    That leaves components (a) and (c).
41. [41]
    The Public Trustee submits that the rehearing must be confined to component (c), as this was the only component in respect of which the Court of Appeal identified error. We do not accept that submission. While the Court of Appeal did not address at any length the other components of the claim, it remitted ‘the application for compensation’ for rehearing without expressly confining the scope of the rehearing. The application for compensation did not relate just to component (c). We do not consider that any confinement arises by necessary implication.
42. [42]
    It is therefore relevant to provide background about component (a).
43. [43]
    The figure of $38,951.13 relates to certain expenditure by CRG’s mother and aunt as administrators using CRG’s funds. The bulk, $31,577.77, was spent on legal fees. The remainder was used to repair the current administrator’s car and to purchase a car registered in the current administrator’s name. The current administrator has advised that the legal fees were for various matters including representation in the 2002 tribunal application, subsequent reporting requirements, and conveyancing in 2003.
44. [44]
    That expenditure was initially criticised by the Adult Guardian when it conducted an investigation.^[19]
45. [45]
    CRG’s mother and the current administrator argued before the Guardianship and Administration Tribunal at its 9 March 2004 hearing that the expenditure was for CRG’s benefit. However, while the tribunal’s reasons (dated 8 April 2004) do not indicate that the tribunal itself adopted the term ‘misappropriation’, the tribunal did refer to the expenditure, along with other matters, in the course of its reasons for revoking the appointment of CRG’s mother and aunt.
46. [46]
    The tribunal commented in its reasons that the Public Trustee had submitted that it:

… would reserve their right to apply for compensation should they be appointed as administrator. In particular they would seek an Order under s.59 demanding the sum of $38,951.13 ...^[20]

47. [47]
    Later in the reasons:

The Tribunal notes the Public Trustee of Queensland has indicated that they will consider bringing an application under section 59 for an order for compensation for the loss caused by the administrator’s failure to comply with this Act and such an application will be considered by the Tribunal on its merits at the time it is particularised.^[21]

48. [48]
    No such application was brought by the Public Trustee. There is evidence on file that years later the Public Trustee obtained the opinion of counsel and decided not to seek recovery of the money.

The current administrator’s case for compensation

49. [49]
    Arguments advanced by the current administrator in his oral submissions at the rehearing include, in summary:

    1. an option not considered by the Public Trustee was CRG living with his mother in his own home and receiving the full pension as per the financial management plan made by his mother and aunt when they were administrators;
    2. if the Public Trustee had not evicted CRG’s mother and the current administrator from the unit, and if it had investigated the alleged misappropriation, CRG would have been living with them in his own home and family members would have been administrators;
    3. CRG would not have paid rent, and would not have had to pay fees and charges for administration;
    4. family members living with CRG would have paid rent, and this would have covered property expenses;
    5. instead of living with his mother and the current administrator in his own home, CRG lived with his father and step-mother when he was released from prison in December 2003;
    6. as a result of the Public Trustee’s decisions, CRG permanently lost the opportunity to live in his own home, as funds dwindled over time because of rent and fees;
    7. the known losses are:
       1. (i)
          the sale price of each property;
       1. (ii)
          $15,500.56 being the amount recovered by Centrelink from CRG as this represents the difference between the rate of pension payable had CRG been living in his home and the rate payable when he was not;
       1. (iii)
          the $38,951.13 because that all turned out to be wasted expenditure in the family’s effort to ensure home ownership for CRG; and
       1. (iv)
          rent paid by CRG for the period since 2009 when he has been living with his mother and the current administrator.
50. [50]
    The current administrator says that the rent paid by CRG while he has been living with them has been consistently $230 per week. He handed up some documents at the rehearing in support of this. The contention was not conceded by the Public Trustee, who submits that the evidence is incomplete and inadequate.
51. [51]
    The current administrator submitted that the tribunal should award compensation to CRG for the ‘known losses’ plus interest.
52. [52]
    The current administrator also submitted that interest on the loss of assets should be awarded at a rate that takes into account the capital growth in the Sunshine Coast area including the particularly high capital growth in that part of the Sunshine Coast hinterland where the bush retreat is situated.
53. [53]
    The current administrator submitted that for the ‘unknown losses’ – the Public Trustee’s fees and charges, the difference in the pension rate after 14 January 2006 (the end of the Centrelink debt period), and any further expenses that would not have been incurred if CRG had been living in his own home – the tribunal should order the Public Trustee to:

    1. provide a full account; and
    2. pay a professional person to quantify the losses.
54. [54]
    In relation to accounts, the current administrator says that the Public Trustee has provided an account for the period 2003 to 2007 but not for any later period. Asked by the tribunal if he had used his power as administrator to require financial information, the current administrator said he had, and the Public Trustee had provided a number of ‘illegible discs’. In written submissions, the current administrator had said that the Public Trustee had given him compact discs which they claim contain all of its financial records for CRG, but he has been unable to extract information from them.
55. [55]
    Additional points made by the current administrator in written submissions include, in summary:

    1. CRG’s choice not to stay in the unit in late 2003 does not mean that he would never again choose to live in his own home;
    2. mental health and addiction problems can lessen over time;
    3. when the Public Trustee was reappointed in December 2003, it ‘… changed [CRG’s] primary residence, changed [CRG’s] primary supportive relationships and changed his eligibility for the pension’;^[22]
    4. a prudent administrator ‘would in 2004 have allowed [CRG] and his mother to live in the home he owned at the time’;^[23]
    5. ‘in 2004 [CRG] was 22, his emerging mental illness had developed, he was engaging in chronic substance abuse and he was recently released from prison. He was denied the opportunity to live in his own seaside unit and bush retreat that he owned at the time and which were specifically purchased for his needs and circumstances. He remained homeless until 2009 …’;^[24]
    6. without explanation, the Public Trustee abandoned the financial management plan of the family administrators which involved CRG living in property that he owned;
    7. ‘an ordinary prudent non-conflicted administrator would not choose to put [CRG] in rental accommodation if home ownership was an option’;^[25]
    8. because of his assets, CRG was ineligible for public housing, legal aid or representation by the Aboriginal Legal Service ‘despite being frequently arrested and imprisoned. He spent a total of eleven months on remand between 2006 and 2009 – because he had no fixed address’;^[26] and
    9. if the Public Trustee had complied with legislative requirements in 2004, CRG’s mother and the current administrator would have been living in the unit and other family members would have been living at the bush retreat, and rent paid by CRG’s mother and the current administrator, and if necessary contributions from other family members, would have covered property costs, or there would have been financially equivalent or better alternatives, and CRG would have been receiving a full pension.
56. [56]
    Further:

    1. when CRG was released from prison on bail in December 2003 on condition that he live with his father, the father did not inform CRG’s solicitor that CRG could have been bailed to the unit he owned and where his primary support persons were living;
    2. CRG’s mother and the current administrator were not informed of the bail hearing; and
    3. had CRG been bailed to the Maroochydore unit, the plan by his mother and the current administrator for them to live with and support CRG could have been put into effect, at a point when CRG had been abstinent from sniffing petrol and paint during the time he had been in prison.
57. [57]
    Further,

    1. the current administrator has not asked CRG to write an affidavit about his views and wishes during the period in question, because it can be disturbing and triggering for CRG to recall those ‘paint and petrol sniffing times’;^[27]
    2. however, other evidence is relevant as to his views and wishes;
    3. the tribunal should have regard to observations of health professionals:
       1. (i)
          a psychologist who assessed CRG several times wrote in 2000 that CRG had ‘spoken with his family about his future. He would like to get a block of land somewhere quiet, build a house and live there’;^[28]
       1. (ii)
          a psychiatrist who assessed CRG in prison in December 2007, which was after the unit was sold, commented that CRG said he ‘would choose to live with his mother on Palm Island. He went on to tell me that he preferred living in the country to urban areas …’;^[29]
       1. (iii)
          the psychiatrist also commented that it is likely that the escalation in CRG’s offending which led to his incarceration was ‘a result of polysubstance dependence relapsing and a lack of sufficient community support particularly in terms of accommodation’;^[30]
    4. in 2002, the Guardianship and Administration Tribunal ‘authorised [CRG] to live in his own home supported by his mother’^[31] so it must have been satisfied that CRG’s views and wishes were taken into account in this plan and that the proposed arrangement was viable.
58. [58]
    We pause to comment that we do not think that last point exactly captures the role of the tribunal. The role was not to decide or authorise where CRG lived or with whom. However, we accept that the tribunal appointed the mother and aunt as administrators in the knowledge that they planned to purchase a property for CRG so that he could live in his own home and be supported by family. 
59. [59]
    Further, according to the current administrator in written submissions:

    1. ‘when the Adult Guardian was removed in 2009 and [CRG] had the right to choose where he lived he moved straight in with his mother and I and has been with us ever since’;^[32] and
    2. CRG’s enthusiastic support for the application for compensation can be gleaned from the fact that when QCAT appointed the current administrator in 2017, it observed that the current administrator was very passionate about righting wrongs he perceived were occasioned to CRG over the years, and that CRG appeared to hold similar passionate views.
60. [60]
    The current administrator notes records of some meetings held in 2007 including one in May 2007 attended by staff members of the Public Trustee, the Adult Guardian, Open Minds, and MICAH Homeless Service. The discussion was about CRG moving to a unit complex in New Farm. The current administrator notes that CRG and his family were not involved in these meetings. At this time, CRG ‘still owned his unit and his mother and I were available to move into it with him’.^[33]
61. [61]
    Further, according to the current administrator:

    1. as at February 2004, CRG’s two properties were ‘escalating in value, one of them rapidly’;^[34]
    2. the property market in the Sunshine Coast hinterland has continued to boom, and ‘the bush retreat was an exceptional long-term investment that should have been held onto for as long as possible, as well as for its cultural, family support and lifestyle benefits’;^[35]
    3. as the Public Trustee did not comply with legislative requirements, it did not perform the duties for which it was paid fees and charges, and so CRG should not have had to pay those fees and charges; and
    4. CRG should be compensated for all rent paid since December 2003, plus interest.
62. [62]
    Further:

    1. the investment of CRG’s funds in Public Trustee financial products or Queensland Investment Corporation financial products represents a conflict of interest and is therefore a conflict transaction under section 37 of the Guardianship and Administration Act;
    2. such investment also did not comply with general principle 10 which provided that ‘power for a matter should be exercised … in a way that is appropriate to the adult’s characteristics and needs’; and
    3. investment by the Public Trustee of adults’ funds in its own products, especially on a routine basis, was extensively criticised by the Public Advocate in a 2021 report Preserving the financial futures of vulnerable Queenslanders.
63. [63]
    Further,

    1. in 2004, QCAT found that CRG’s mother had misappropriated $38,951.13 and so the Public Trustee had a duty to pursue recovery action but it did not even issue a letter of demand;
    2. had it investigated, it would have found that the money was not misappropriated;
    3. CRG’s mother would have been exonerated and she along with another family member would have been appointed administrator again;
    4. the Public Trustee’s failure to investigate meant that CRG’s mother had no opportunity to defend herself and was permanently excluded from further appointment by QCAT as administrator; and
    5. the Public Trustee continued to argue at QCAT that CRG’s mother should not be appointed because of the alleged misappropriation.
64. [64]
    The current administrator remarked at the rehearing that the only decision on record is one made on 5 February 2004.
65. [65]
    There is a reference in submissions made by the Public Trustee in 2011 to events of 5 February 2004.^[36] The Public Trustee says it met with CRG’s father and the father’s wife on 5 February 2004; that the father had quit his job to look after CRG; and that the Public Trustee and the father agreed that the unit should be rented out and the bush retreat should be considered for sale.
66. [66]
    Clearly, though, there must have also been further decisions, even if not documented as formal decisions, such as about how much rent to seek for the unit, when and at what price to sell the bush retreat, to sell the unit, and so on.

Public Trustee’s position

67. [67]
    Points made by the Public Trustee include, in summary:

    1. there is no evidence that during the period in question anyone, including CRG when he was his own decision-maker for accommodation or the Adult Guardian when it was appointed for accommodation decisions, approached the Public Trustee to request that CRG live in a property that he owned;
    2. the decisions to sell the bush retreat and to rent out and later sell the unit were prudent in light of CRG’s then financial circumstances;
    3. for example, as at 2005, one of the real properties had to be sold to solve an unsustainable budget deficit that existed despite rental income being received for the unit;
    4. it made sense for the bush retreat to be sold because it had little or no potential to generate income;
    5. in 2007, when the unit was sold, there was only a marginal budget surplus;
    6. QCAT’s analysis in the 2020 decision showed a return on investment for the unit of only 2.7%, and this did not take into account income tax;
    7. additionally, the Centrelink debt for over $15,000 had recently been raised;
    8. even if the Public Trustee had considered other options in 2004, 2005, and 2007, and consulted CRG and his family, the same decisions would have been made;
    9. the actions of an administrator are to be judged on the circumstances existing at the time decisions were made, and must not take into account later developments such as increases in property values as these would have been unknown at the time;
    10. the sale of the properties did not disadvantage CRG because they were sold at above or around their true values;
    11. it is not enough for the current administrator to establish a possibility of financial loss;
    12. he must prove loss on the balance of probabilities but he has not done so;
    13. he has not, for example, shown on the balance of probabilities that CRG, if consulted, would have taken up residence at the unit;
    14. further, he must quantify any loss with enough specificity to enable a calculation of loss but he has not done so;
    15. for example, he has not factored in the costs of retaining real property such as rates, insurance, maintenance, and the risk of untenanted periods; and
    16. any rent paid by CRG was the result of his own clear intention not to live in a property he owned.
68. [68]
    Further, the Public Trustee notes that the current administrator has not provided any evidence directly from CRG, or from CRG’s mother, as to what they would have told the Public Trustee if they had been consulted. The Public Trustee submits that other available evidence, namely the letters of late 2003 and February 2004, supports the conclusion that it is unlikely that CRG would ever have lived at the unit.

Discussion and findings

69. [69]
    To prove loss, the current administrator must show, on the balance of probabilities, that the failures of the Public Trustee to consult as required and to consider all reasonable options caused CRG to suffer a loss. Put another way, he must establish on the balance of probabilities that if the Public Trustee had complied with the Act, CRG would have ended up in a better financial position.
70. [70]
    A central point made by the current administrator–that CRG would have been better off financially, culturally, and emotionally living in a home he owned and having family as support persons and administrators–undoubtedly has force. CRG received Centrelink benefits, mainly disability support pension. A person’s principal home is an exempt asset under the social security assets test.^[37] The holding of wealth by a pensioner in their own home can obviously have financial advantage for them. Further, a family member as administrator will not be entitled to remuneration.^[38]
71. [71]
    We are mindful that we should not approach the question of liability with the benefit of hindsight. That would be unfair because hindsight is not something available to an administrator when it makes decisions. An administrator would not have known in 2003 or the following years that CRG would remain on a social security benefit long-term. However, it would have been reasonably foreseeable that he might, given that he was granted disability support pension at a young age. Therefore, any social security implications of a decision were something an administrator should have taken into account.
72. [72]
    Had the Public Trustee acted in full compliance with the Guardianship and Administration Act, it would have considered the reasonable options open in 2004 to 2007. It would have taken into account the benefits of CRG living in a home he owned, including the social security advantage and the fact that he would not have had to pay rent. The Public Trustee would also have consulted with CRG, his mother and the current administrator.
73. [73]
    It is implicit in the current administrator’s case that if consulted, he would have expressed the views that are central to his case for compensation, including the importance of CRG living in a home he owned, family emotional and financial support for CRG, and the strength of the property market on the Sunshine Coast.
74. [74]
    We do not have evidence from CRG or his mother about what views they would have expressed if consulted. However, it is reasonable to assume that they would have expressed views similar to those expressed in the late 2003 letter. That letter favoured the development of the bush retreat and, if possible, the retention of the unit, while leaving open the options of selling or renting out the unit. The letter also indicated confidence in the Sunshine Coast property market.
75. [75]
    It can be assumed that if consulted, CRG would have expressed his views on the desirability of rural living. Despite that, we infer and find that CRG would not have chosen to live at either property at any time while he still owned them. He had not chosen to live at either of them in late 2003. He chose to live in Brisbane, notwithstanding that at some future point he might choose to live in the country. CRG knew that he owned property on the Sunshine Coast but at no point did he move to the bush retreat, where it had been hoped by his mother that he would live initially in basic conditions, or ask the Public Trustee to keep the unit available so that he could live there. He did not ask the Public Trustee to evict the tenants so that he could move in, or to sell the Maroochydore unit and buy one for him in Brisbane. Nor did the Adult Guardian make such requests while it was responsible for making his accommodation decisions. CRG, we find, did not wish or intend to live in either of the properties he owned during the years in question.  
76. [76]
    Neither property was his home such that he could have validly claimed the principal home exemption under the social security assets test. 
77. [77]
    Further, the financial circumstances of CRG in 2004 and 2005 were strained. Even if the Public Trustee had consulted and CRG’s strong views had been that the unit should not be tenanted, it is improbable that an administrator, applying all of the relevant general principles and exercising its power with reasonable diligence, would have seen it as a prudent option to decline to derive income on an asset that had income-producing potential. We take into account that an income test applies in calculating the rate of pension. The income test uses a complex formula, but suffice it to say for present purposes that it does not apply a dollar for dollar (or higher) reduction for income.^[39]
78. [78]
    Similarly, in relation to the bush retreat, even if the Public Trustee had consulted and CRG’s strong views were that the bush retreat should be retained, it is improbable that an administrator would have seen it as prudent and proper option to retain a non-income producing asset that CRG was not using and had not used.
79. [79]
    The financial situation was not as tight in 2007. There was a small budget surplus and a substantial buffer of funds. The decision to sell the unit was not inevitable. On the other hand, by then some further years had gone by without CRG or his guardian asking that CRG live in the unit. He was still living in Brisbane. He had not demonstrated any inclination to live on the Sunshine Coast. In those circumstances, it is unlikely that the Public Trustee would have concluded, even if it had consulted CRG and his family and had considered all reasonable options, that it was essential that it retain an asset for CRG in Maroochydore. There was no social security advantage in retaining the unit as it was not an exempt asset. Had it been retained, it could have become an exempt asset if CRG had later taken up residency there. However, he had shown no inclination to do so. Selling the unit realised funds which could have been used to purchase another dwelling for him at some point, if sufficient funds remained and if he demonstrated a wish to live in a property he owned.
80. [80]
    While it is possible that the Public Trustee would have made a different decision in 2007 about whether to sell or retain the unit, had it consulted with CRG, we are not satisfied that it is likely that it would have done so.
81. [81]
    We are, then, not persuaded that, if the Public Trustee had fully complied with the legislative requirements, it is more likely than not that it would have made different decisions than the ones it did about renting out the unit, selling the bush retreat, and selling the unit. We find accordingly.
82. [82]
    It follows that the Public Trustee’s failures did not cause loss to CRG, whether in relation to the disposal of real properties, payment of rent, decreased pension entitlement, or similar consequences.
83. [83]
    We will also address other contentions made by the current administrator.
84. [84]
    We do not accept his arguments to the effect that the Public Trustee changed CRG’s primary residence or did not allow him to stay in the unit. He had only stayed at the unit for one night. Further, the fact that CRG was bailed to his father’s address in December 2003 had nothing to do with the Public Trustee. It was a decision made by a court before the Public Trustee became administrator for the second time.
85. [85]
    We do not accept that the Public Trustee chose to put CRG’s assets into financial products rather than real estate as part of some routine approach. If that was its default mode of operation, it would have sold both real properties soon after its reappointment. However, even if we were persuaded that such an approach was followed, and that the selection of particular financial products involved a conflict of interest, the current administrator has not provided evidence that, at the times when the decisions were made, the expected rate of return on the selected financial products was lower than the expected rates of return on other reasonably available options.
86. [86]
    In relation to the figure of $38,951.13, we consider that a responsibility of the Public Trustee when it was reappointed administrator would have been to consider whether it should seek recovery of that money on CRG’s behalf, whether through negotiation or a proceeding under section 59. Whether it pursued recovery would have depended on factors such as the anticipated cost and its assessment of the prospects of success.
87. [87]
    The Public Trustee chose not to pursue recovery. It is not apparent how that decision could have caused loss to CRG when, on the current administrator’s case, the expenditure in question was proper, and efforts to recover it would have resulted only in the exoneration of CRG’s mother and aunt.
88. [88]
    We appreciate that the current administrator sees such potential exoneration as part of the larger picture: exoneration would have strengthened any effort by CRG’s mother to be reappointed as administrator.
89. [89]
    However, it was not the responsibility of the Public Trustee to exonerate CRG’s mother.
90. [90]
    There was no absolute bar to CRG’s mother being appointed administrator again, though in considering her appropriateness for appointment, the tribunal would have been required to have regard to the nature and circumstances of her removal from appointment in 2004.^[40]
91. [91]
    It was open to CRG’s mother to apply to the Guardianship and Administration Tribunal or later QCAT for a review of the appointment of an administrator. She could have put, or re-put, her arguments as to why the expenditure in question was proper. If the tribunal was persuaded she was more appropriate for appointment than the Public Trustee, it could have appointed her.^[41]
92. [92]
    The Public Trustee was not responsible for the fact that family members were, mostly, not appointed administrators between 2003 and 2017. That was a matter for the tribunals to decide.
93. [93]
    The current administrator contends that the Public Trustee was not entitled to the fees and charges it received.
94. [94]
    The Public Trustee may, by gazette notice, fix fees and charges for services.^[42] It is not suggested that any gazette notice said that fees and charges could not be levied unless there was full compliance with statutory provisions. Our findings have been to the effect that the same services, in terms of the decisions made and implemented, would have been delivered if there had been full compliance. 
95. [95]
    We do not accept the contention that the fees and charges represent a compensable loss.

Conclusion

96. [96]
    As the current administrator has not established that the Public Trustee’s failures caused loss, the further claim for compensation is dismissed.