ZXJ v ZXK [2022] NSWCATAP 371

ZXJ v ZXK [2022] NSWCATAP 371

The appeal was allowed in part because the Tribunal failed to consider a substantial, clearly articulated submission that the Daughters' delay until the eve of the hearing in confining the initial issue to the appellant's capacity caused the appellant to incur unnecessary costs preparing to meet extensive material and issues that were not ultimately relied upon. That failure constituted error. The Appeal Panel was satisfied that, in light of the Tribunal having identified capacity as the real issue about nine months earlier and the Daughters' intervening filing of significant largely irrelevant material, those circumstances were out of the ordinary and warranted an award of the costs...

Jurisdiction
Australia
Judgment Date
28 November 2022
Procedural Posture
Internal Appeal From a Guardianship Division Costs Decision Refusing to Award Costs / Appeal Allowed in Part by the NCAT Appeal Panel
Outcome
Appeal allowed in part; decision under appeal set aside; appellant awarded costs thrown away up until 16 September 2021 in preparing to address issues other than her capacity to manage her financial affairs.
Legal Topics
['special Circumstances for Costs Under S 60 of the Civil and Administrative Tribunal Act 2013 (nsw)' 'appeal From Discretionary Costs Decision' 'procedural Fairness and Failure to Consider a Substantial, Clearly Articulated Argument' 'financial Management Orders' 'enduring Powers of Attorney']
['administrative Law' 'guardianship' 'costs'] ['special Circumstances for Costs Under S 60 of the Civil and Administrative Tribunal Act 2013 (nsw)' 'appeal From Discretionary Costs Decision' 'procedural Fairness and Failure to Consider a Substantial, Clearly Articulated Argument' 'financial Management Orders' 'enduring Powers of Attorney']

Case Brief

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Procedural Posture

Internal Appeal From a Guardianship Division Costs Decision Refusing to Award Costs / Appeal Allowed in Part by the NCAT Appeal Panel

Legal Issues

  1. 1 ["Whether the Tribunal erred by failing to consider the appellant's argument that the first instance proceedings should not have been commenced or continued, including because the Daughters delayed until the eve of the hearing before confining the issues initially to the appellant's capacity to manage her financial affairs." "Whether the Tribunal had regard to an irrelevant consideration by considering the quantum or scale of the appellant's legal costs, including the engagement of senior counsel." "Whether the Tribunal failed to consider the relevance of concurrent Supreme Court proceedings and the alleged self-interested or collateral purpose of the Daughters' applications." "Whether the refusal to award costs was unreasonable or plainly unjust in light of the appellant's costs burden and the protective jurisdiction of the Guardianship Division."]

Ratio Decidendi

The appeal was allowed in part because the Tribunal failed to consider a substantial, clearly articulated submission that the Daughters' delay until the eve of the hearing in confining the initial issue to the appellant's capacity caused the appellant to incur unnecessary costs preparing to meet extensive material and issues that were not ultimately relied upon. That failure constituted error. The Appeal Panel was satisfied that, in light of the Tribunal having identified capacity as the real issue about nine months earlier and the Daughters' intervening filing of significant largely irrelevant material, those circumstances were out of the ordinary and warranted an award of the costs...

Court Disposition

Appeal allowed in part; decision under appeal set aside; appellant awarded costs thrown away up until 16 September 2021 in preparing to address issues other than her capacity to manage her financial affairs.

Orders

  • ['The appeal is allowed in part.' 'The decision under appeal is set aside.' 'In substitution for that decision the appellant is awarded the costs thrown away up until 16 September 2021, in preparing to address issues other than the capacity of the appellant to manage her financial affairs.' 'The appellant and the...