AHB v NSW Trustee and Guardian

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AHB v NSW Trustee and Guardian [2012] NSWADTAP 37

Hearing dates:

8 August 2012

Decision date:

08 August 2012

Jurisdiction:

Appeal Panel - Internal

Before:

Magistrate N Hennessy, Deputy President
L Goodchild, Judicial Member
B Thomson, Non-Judicial Member

Decision:

1. Leave to extend the appeal to the merits of the Tribunal's decision is refused.

2. The Tribunal's decision is affirmed.

3. The appeal is dismissed.

Catchwords:

APPEAL - decision by NSW Trustee to sell property - appeal on a question of law and on merits - no error of law - leave refused to appeal on merits

Legislation Cited:

Administrative Decisions Tribunal Act 1997
NSW Trustee and Guardian Act 2009
Guardianship Act 1987

Category:

Principal judgment

Parties:

AHB (Appellant)
NSW Trustee and Guardian (Respondent)

Representation:

AHB (Appellant in person)
NSW Trustee and Guardian (Respondent)

File Number(s):

129011

Publication restriction:

S126 of the Administrative Decisions Tribunal Act 1997 applies

 Decision under appeal 

Jurisdiction:

9108

Citation:

[2012] NSWADT 76

Date of Decision:

2012-04-27 00:00:00

File Number(s):

113308

REASON FOR DECISION

1. HER HONOUR: AHB, we have been able to come to a decision and the decision is to dismiss the appeal and to affirm the Tribunal's decision.

1. AHB has appealed against a decision of the Tribunal made on 27 April 2012, affirming a decision of the New South Wales Trustee and Guardian, to sell his mother's home.

1. The decision to sell the home came about as a result of a decision by the Public Guardian who has guardianship over AHB's mother, and can make decisions about where she should live. The Public Guardian made a decision that AHB's mother should live in a higher care facility than that in which she currently resides and that in order to do so, a bond of around $350,000 would be required.

1. As AHB's mother's financial manager, the New South Wales Trustee was asked to form a view as to how the money for the bond could be raised. The New South Wales Trustee looked at the assets of AHB's mother and her income and her liabilities and came to a decision that the correct decision was to sell her property. As I have said, the Tribunal below made a decision which affirmed the New South Wales Trustee's decision.

1. AHB has appealed against that decision to the Appeal Panel. He can appeal on a question of law as of right or with leave on the merits: Administrative Decisions Tribunal Act 1997, s 114 and 115. AHB confirmed that his grounds of appeal were as set out in a document dated 1 August 2012 and received by the Tribunal on 2 August 2012. That document sets out three grounds of appeal and I will deal with them each in turn.

1. The first ground is that his mother does have the legal capacity to make a specific decision and that the Tribunal was wrong in assuming that she did not have that capacity. The question of AHB's mother's capacity to…