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Smith v Public Trustee of Queensland[2016] QCATA 85

Smith v Public Trustee of Queensland[2016] QCATA 85

CITATION:

Smith v Public Trustee of Queensland [2016] QCATA 85

PARTIES:

Mr Smith

(Applicant/Appellant)

v

The Public Trustee of Queensland

(Respondent)

APPLICATION NUMBER:

APL486 -15

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane 

DECISION OF:

Senior Member Stilgoe OAM

DELIVERED ON:

30 May 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. The application to extend or shorten a time limit or waiver of compliance with a procedural requirement filed on 4 May 2016 is refused.
  2. The application for leave to appeal or appeal is therefore dismissed.

CATCHWORDS:

APPEAL – GUARDIANSHIP – EXTENSION OF TIME – where Tribunal Order to facilitate sale of adult’s asset – where husband of adult appealed – where contract of sale frustrated by husband – where order to ensure early hearing – where self–executed order – where application to extend time under self–executing order

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 61

Coppens v Water Wise Design Pty Ltd [2014] QCATA 309

APPEARANCES and REPRESENTATION (if any):

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

REASONS FOR DECISION

  1. [1]
    Mr Smith lives in his wife’s home. Mrs Smith lacks capacity to manage her financial affairs so, in 2009, the Tribunal appointed The Public Trustee of Queensland (‘PTQ’) to act as her administrator.
  2. [2]
    Since that appointment, PTQ has been trying to sell Mrs Smith’s home so that the proceeds could be used to pay for her accommodation. Finally, on 27 October 2015, the Tribunal ordered that the PTQ was to take whatever steps it considered necessary to sell Mrs Smith’s home.
  3. [3]
    Mr Smith filed an appeal against that decision on 23 November 2015. By order of 27 January 2016, I refused Mr Smith’s application for a stay of the Tribunal’s decision.
  4. [4]
    On 2 March 2016, at a directions hearing, I made directions culminating in an oral hearing on 13 April 2016. The first of those directions required Mr Smith to file his submissions in support of the application to appeal by 30 March 2016. At a directions hearing on 13 April 2016, the Appeal Tribunal extended the time for Mr Smith’s compliance with the directions to 4 May 2016 and added a requirement that he file and serve a copy of the transcript of the hearing below. The Appeal Tribunal further ordered that, if he did not comply with that time frame, his application for appeal would be dismissed without further notice.
  5. [5]
    On 4 May 2016, the last day for compliance with the Appeal Tribunal’s directions, Mr Smith filed an application for an extension of time.  The PTQ objected to the extension of time on the grounds that this issue had been dragging on for years, and it could not see any basis on which Mr Smith’s application for leave to appeal would be successful.
  6. [6]
    The Appeal Tribunal has the power to extend time or grant relief from procedural requirements.[1] As the Appeal Tribunal has observed,[2] consideration of whether or not an extension should be granted is a two-step process. Firstly, the Appeal Tribunal must consider whether to do so would cause prejudice or detriment to a party to a proceeding, not able to be remedied by an appropriate order for costs or damages.
  7. [7]
    The PTQ has been trying to sell Mrs Smith’s property for over five years. The Public Trustee entered into a contract for sale of the home on 22 January 2016 but was prevented from settling the sale because, in February 2016, Mr Smith lodged a caveat claiming an equitable interest in Mrs Smith’s property. Mr Smith has now filed Federal Court proceedings to support that caveat.
  8. [8]
    This application is in the face of a property settlement in the Family Court in 1996 in which Mr Smith transferred all right an interest in the home to Mrs Smith. Mr Smith now says that the property settlement occurred to enable him to pursue his work in identifying abuse in the Catholic Church and that Mrs Smith would have supported any application to set aside the Family Court orders as they had resumed a relationship.
  9. [9]
    Of course, Mrs Smith is unable to support Mr Smith in his evidence. What is apparent from the material filed is that Mr Smith has had no formal interest in the home since 1996 – twenty years ago – and Mrs Smith is being denied the benefit of her asset.
  10. [10]
    Mrs Smith receives a disability pension. The PTQ is paying for Mrs Smith’s nursing home account, chemist bills and property expenses. Mrs Smith’s budget is in deficit and will continue to be in deficit until the PTQ is able to access the funds from the home. The home requires in excess of $30,000.00 worth of repairs. Meanwhile, Mr Smith continues to enjoy the use of the home without contribution.
  11. [11]
    These are not matters that can be cured by an order for costs. The first element of the two-step process the Tribunal must consider cannot be satisfied.
  12. [12]
    Mr Smith applied for an extension of time because he had not yet received a copy of the transcript.
  13. [13]
    Mr Smith annexed his Auscript application, which he lodged on 20 April 2016. It shows that, although he asked for a one-day turnaround for the transcript, he also asked for a fee waiver. Auscript will not provide a transcript on a short time frame if there is a request for a fee waiver.
  14. [14]
    It is difficult to comprehend that, faced with a self-executing order, Mr Smith would not take the necessary steps to ensure that he was able to comply with that order. There are two possible explanations:  he does not care to comply with the Tribunal’s order; or he is simply taking every opportunity to delay the finalisation of this appeal. Whatever Mr Smith’s reason, I see no basis for an extension of time in a matter that has already been in the Appeal Tribunal for some months.
  15. [15]
    The application for an extension of time is refused. The application for leave to appeal or appeal is therefore dismissed.

Footnotes

[1] QCAT Act s 61(1)(b).

[2]Coppens v Water Wise Design Pty Ltd [2014] QCATA 309 at [8].

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Editorial Notes

  • Published Case Name:

    Smith v Public Trustee of Queensland

  • Shortened Case Name:

    Smith v Public Trustee of Queensland

  • MNC:

    [2016] QCATA 85

  • Court:

    QCATA

  • Judge(s):

    Senior Member Stilgoe

  • Date:

    30 May 2016

Appeal Status

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

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