AW v WW - [2023] NSWSC 724

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: AW v WW [2023] NSWSC 724
Hearing dates: 26, 27 June 2023
Date of orders: 27 June 2023
Decision date: 27 June 2023
Jurisdiction: Equity - Protective List
Before: Lindsay J
Decision:
Order that the plaintiff’s application (under clause 14(1)(b) of Schedule 6 to the Civil and Administrative Tribunal Act 2013 NSW) for leave to appeal against a decision of the Guardianship Division of the NSW Civil and Administrative Tribunal on a ground other than a question of law be dismissed.

Catchwords:
GUARDIANSHIP – Guardians, committees, administrators, managers and receivers – Appeal from dismissal by NCAT of applications for the appointment of a guardian and a financial manager.
APPEALS – Appeal to Court from Guardianship Division of the NSW Civil and Administrative Tribunal – Application for leave to appeal on a ground other than a question of law dismissed - Civil and Administrative Tribunal Act 2013 NSW, Schedule 6, clause 14(1)(b).

Legislation Cited:
Australian Courts Act 1828 (Imp)
Civil and Administrative Tribunal Act 2013 NSW
Guardianship Act 1987 NSW
New South Wales Act 1823 (Imp)
Powers of Attorney Act 2003 NSW
Surveillance Devices Supreme Court Act 1970

Cases Cited:
P v NSW Trustee and Guardian [2015] NSWSC 579
Secretary, Department of Health and Community Services v JWB and SMB (Marion’s Case) (1992) 175 CLR 218

Category: Procedural rulings
Parties: Plaintiff: AW (a son)
Defendant: WW (a mother)
Representation:
Counsel:

Plaintiff: Miles Condon SC and Irina Hoskinson
Defendant: RD Marshall SC and N Olson

Solicitors:
Plaintiff: Swan Lawyers
Defendant: MacRae Lawyers

File Number(s): 2023/00080280

JUDGMENT

The plaintiff in these proceedings is the adult son (and only child) of the defendant, an 89 year old widow whose husband died in 2015.
On 3 February 2021 the defendant revoked an appointment of the plaintiff as her enduring attorney and on 6 February 2021 appointed an accountant (“JM”) as her new enduring attorney pursuant to the provisions of the Powers of Attorney Act 2003 NSW.
On 8 October 2021 the plaintiff lodged with the Guardianship Division of the NSW Civil and Administrative Tribunal (“NCAT”) applications (under the Guardianship Act 1987 NSW) for the appointment of a guardian and a financial manager for the defendant.
On 19 October 2021 the defendant executed an enduring guardianship appointment (under the Guardianship Act 1987) appointing “KB” (a retired solicitor and cousin by marriage) and “KS” (a solicitor) as her guardians jointly and severally.
There is no challenge to the validity of the defendant’s appointments of enduring agents, but the plaintiff contends that, if the defendant’s best interests are to be served, those appointments should be displaced, respectively, by the appointment of a financial manager and the appointment of a guardian.
By orders made on 28 November 2022 (supported by reasons for decision published on 10 February 2023), the Tribunal dismissed both applications of the plaintiff.
By a summons filed on 17 March 2023 (and amended on 7 June 2023) the plaintiff appeals from those orders to this Court…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AW v WW

Details

AGLC: AW v WW [2023] NSWSC 724
Case: [2023] NSWSC 724
Decision Date: 27 June 2023

CaseChat Overview and Summary

AW and WW were parties to an appeal before the Supreme Court of New South Wales, concerning the dismissal by the NCAT of applications for the appointment of a guardian and a financial manager. The applicants, AW and WW, sought to challenge the NCAT's decision which had refused to appoint a guardian and a financial manager for a person of concern, referred to as XY. The applicants argued that XY was unable to manage their own affairs due to cognitive impairment, and that the appointment of a guardian and a financial manager was necessary to protect XY's interests and assets.

The legal issues before the court included whether the NCAT had erred in its assessment of XY's capacity to manage their own affairs and whether the NCAT had adequately considered the necessity for the appointment of a guardian and a financial manager. The court had to determine if the NCAT's findings were supported by the evidence presented and whether the NCAT had correctly applied the relevant statutory provisions. The applicants contended that the NCAT had misunderstood the evidence regarding XY's capacity and had not appropriately weighed the risks associated with not appointing a guardian and a financial manager.

The court held that the NCAT's decision was not in error. The evidence presented did not demonstrate that XY lacked the capacity to manage their own affairs to the extent required for the appointment of a guardian. Furthermore, the court found that the NCAT had correctly assessed the risks and had adequately considered the necessity for the appointment of a guardian and a financial manager. The court concluded that the NCAT's findings were supported by the evidence and that there was no basis for the applicants' contentions. Consequently, the application for leave to appeal was dismissed. The court upheld the NCAT's decision, finding no merit in the applicants' arguments.

Orders