AMC and ALQ v NSW Trustee and Guardian and AOD (No. 2)

[2012] NSWADT 279

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AMC and ALQ v NSW Trustee and Guardian and AOD (No. 2) [2012] NSWADT 279
Hearing dates:	11 December 2012
Decision date:	11 December 2012
Before:	Judge K P O'Connor, President
Decision:	Application for review dismissed. Decision as varied affirmed.
Catchwords:	PROTECTED ESTATE - Trustee's decision as to Appointment of Agent - Decision as varied affirmed
Cases Cited:	AMC and ALQ v NSW Trustee and Guardian [2012] NSWADT 217
Category:	Principal judgment
Parties:	AMC (First Applicant) ALQ (Second Applicant) NSW Trustee and Guardian (First Respondent) AOD (Second Respondent)
Representation:	S Brennan (First and Second Applicants) D Mendelssohn (First and Second Applicants) R Stormont (First Respondent) AOD - In person (Second Respondent)
File Number(s):	123257

reasons for decision

1. HIS HONOUR: The Tribunal has had before it for some time an application for review lodged in the name of ALQ and AMC. (ALQ is the son of AMC. AMC's financial affairs are the subject of a financial management order appointing the NSW Trustee to manage those affairs.)

1. The application for review describes the decision that is under contention as the decision 'to appoint Coastline Sales Pty Limited as sales agent for 18 Frenchmans Road, Randwick'. In the proceedings we have more usually referred to this agency as Century 21 Randwick.

1. I dealt with the case's history, and the concerns of ALQ and AMC to some extent in the stay decision that was made on 13 September: see AMC and ALQ v NSW Trustee and Guardian [2012] NSWADT 217. It has since been issued to the parties.

1. There has been a significant amount of further material filed. The house remains on the market.

1. The NSW Trustee advises that AMC is insistent on a sale at $1.6 million and no lower. There is a suggestion that a real offer has been made in the last 24 hours (supported by an email placed in evidence from the prospective purchaser) at $1.55 million - so that is very close to $1.6 million in percentage terms.

1. AOD (a niece of AMC), who has been joined to the proceedings, seeks to say in a table that she presented for consideration, that if the house were to remain on the market over the summer and still only attract $1.55 million in February 2013 or March 2013, there would be a significant cost in having wasted the opportunity presented by the offer now received.

1. The particular concern that ALQ has, and is supported by his wife who is here today, is over the way in which Mr Movsessian of Century 21 has gone about marketing the property. I was given an account of the circumstances on the last occasion. As I indicated in my earlier decision, I too was somewhat surprised at his view about the unimportance of the state of presentation. Now we have statements from AOD (that I acknowledge have not been tested) which suggest that maybe the explanation for the state of presentation is a more complicated one, and cannot necessarily be laid completely at the door of the agent. I do not want to reopen that dispute.

1. Ultimately the Tribunal must deal with the issue by having regard to what might be seen to be in the best interests of the protected person.

1. I mentioned on the last occasion the fact that AMC's new home at Ryde is subject to a mortgage pending sale of the Randwick property. It is, obviously, in AMC's financial interests to have that discharged as soon as possible. That would be facilitated by a sale at or around $1.6 million.

1. I think I have conveyed through the discussion today that it would be going too far to replace the judgment of the Trustee with a different judgment by the Tribunal on the question of who might be appropriate to have involved as an agent. Clearly there is a level of dissatisfaction, in at least part of the family, with Mr Movsessian.

1. The Trustee has responded to that, and has already revised the decision that is the subject of the application for review, as lodged. The decision that came before me in September was a decision to have the Century 21 franchise as the sole agent. It is no longer the sole agent.

1. ALQ and, it is said, AMC, would like Mr Movsessian to have no involvement at all.

1. Ms Stormont for the NSW Trustee has explained today that a new agent, Mr Romano of Spot Realty, which is an LJ Hooker franchise, has been engaged, and he is actively involved now in marketing the property. He has, as we understand it, the confidence of AMC. It is advantageous that he speaks Italian.

1. The sense conveyed by ALQ that there was some lack of consideration of the wishes of other family members in relation to how Mr Movsessian obtained his appointment in the first place has been reduced, I feel, by involving Mr Romano. While I have only heard her speak from the bar table, AOD has given an account as to how Mr Movsessian came to be appointed. She is adamant that she was not involved in the final decision. I cannot, and do not need to, resolve this kind of issue here today.

1. I have decided that I should not interfere with the decision of the NSW Trustee as it now stands, and I note that it is different to the decision that came before me in September.

1. We were assured by the NSW Trustee that Mr Romano's agency is now seen as the principal agent but the Trustee wishes to retain an involvement by Mr Movsessian.

1. My own view is that that is desirable, at least in the medium term. Mr Movsessian has been linked to the marketing of the property, as I understand it, now for 8 months. He has therefore got a community of people interested, however small it is, that may be inclined to deal through him. That likelihood is, possibly, reflected in the email received yesterday which nominates a figure that would, if accepted, really resolve these tensions.

1. The position today is that the decision that the Trustee had made in September has in fact been revised in response, I think, to the concerns that have been raised.

1. In those circumstances I do not think I should go so far as to override the Trustee's judgment that it is best to leave Mr Movsessian in the equation in a secondary role with Mr Romano to play the principal role, henceforth, unless of course Mr Movsessian is able to deliver on the offer that was made yesterday or any similar offer.

1. My decision today is to note, first of all, that the NSW Trustee's decision has been varied in the way I described and then to affirm the decision of the NSW Trustee as varied.

1. I note in that regard the indications that have been given today by the Trustee as to the future role of Mr Romano vis a vis Mr Movsessian.

1. Finally I note that there may be administrative implications as to how marketing is done henceforth as between the two agencies, but I am not going to get into the detail of that issue but rather just leave it to the relevant officers at the NSW Trustee.

Order

1. Application for review dismissed.

2. Decision as varied affirmed.

Decision last updated: 23 January 2013