Bovaird v Guardianship Tribunal and Ors [2009] NSWSC 452

New South Wales Supreme Court

CITATION : Bovaird v Guardianship Tribunal and Ors [2009] NSWSC 452

HEARING DATE(S) : 25 May 2009

JUDGMENT DATE : 26 May 2009

JURISDICTION : Equity Division Protective List

JUDGMENT OF : Palmer J

DECISION : Appeal dismissed.

CATCHWORDS : COSTS – APPEAL – Appeal from costs order of Guardianship Tribunal – whether Tribunal's discretion miscarried in refusing to make indemnity costs orders.

LEGISLATION CITED : Family Provision Act 1982 (NSW) Guardianship Act 1987 (NSW) – s 25E, s 25I(1)(b), s 67, s 69(1)

CATEGORY : Principal judgment

CASES CITED : House v R (1936) 55 CLR 499

Leon Lewis MacGillivray Bovaird (Plaintiff) PARTIES : Guardianship Tribunal (First Defendant – submitting appearance filed 02.04.08) Diana Catherine Fallon (Second Defendant) Monica Catherine Bovaird (Third Defendant)

FILE NUMBER(S) : SC P13/08

COUNSEL : R.R.I. Harper SC (Plaintiff) N. Cotman SC (Second Defendant)

Garland Hawthorn Brahe (Plaintiff) SOLICITORS : I.V. Knight, Crown Solicitor (First Defendant) MBP Legal (Second Defendant)

P13/08 Bovaird v Guardianship Tribunal and Ors

JUDGMENT

26 May, 2009

Introduction

1 Pursuant to s 67 of the Guardianship Act 1987 (NSW) the Plaintiff, Mr Bovaird, appeals from costs orders made by the Guardianship Tribunal in two applications made for a financial management order in respect of his mother ("Mrs Bovaird"). One application was made by the Second Defendant ("Mrs Fallon") and the other was made by Mr Bovaird himself. 2 Mrs Fallon applied for an order under s 25E of the Guardianship Act that she be appointed the financial manager of Mrs Bovaird's estate. Mr Bovaird opposed the application. On 1 March 2007, when the hearing of Mrs Fallon's application commenced, Mr Bovaird himself made an application for an order under s 25E. 3 Both applications were heard together and, on 29 August 2007, both were dismissed. 4 Mrs Fallon's application was dismissed because the Tribunal was not satisfied that she had "a genuine concern" for the welfare of Mrs Bovaird, as required by s 25I(1)(b), so that she lacked standing to bring the application. 5 Mr Bovaird's application was dismissed because, although Mrs Bovaird was clearly incapable of managing her own affairs, Mr Bovaird was already managing her affairs satisfactorily pursuant to a General Power of Attorney previously given by Mrs Bovaird. The Tribunal therefore concluded that a financial management order in favour of Mr Bovaird was not necessary. 6 On 6 February 2008, the Tribunal made costs orders in both applications. Mr Bovaird had applied for an indemnity costs order in respect of the whole of his costs of the proceedings, amounting to some $61,000, on the ground that Mrs Fallon's application was an abuse of process from the start and that his own application was in the nature of a precautionary defence. 7 The Tribunal declined to make a costs order in respect of the whole of Mr Bovaird's costs. It ordered that Mrs Fallon pay all of Mr Bovaird's costs up to the commencement of the hearing on 1 March 2007. As I have noted, until that time only one application was on foot, namely, that of Mrs Fallon. On and from 1 March 2007, there were two applications, Mrs Fallon's application and that of Mr Bovaird, made that day. 8 The Tribunal ordered that Mrs Fallon pay one-half of Mr Bovaird's costs on and from 1 March 2007: "From 1 March 2007, Mrs Fallon shall pay half of Mr Bovaird's costs. The costs to be halved include but are not confined to all costs in relation to the issues of whether the Tribunal should make a financial management order and what order it should make irrespective that such costs related to both matters …." 9 The Tribunal expressly ordered that the costs of Senior Counsel for Mr Bovaird were not to be allowed as part of the costs payable by Mrs Fallon, on the ground that the nature of the proceedings and the relatively straightforward issues did not justify the engagement of Senior Counsel as well as Mr Bovaird's solicitor. 10 Costs were ordered to be paid on the party/party basis.