Bni v NSW Trustee and Guardian - [2015] NSWCATAD 69

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: BNI v NSW Trustee and Guardian [2015] NSWCATAD 69
Hearing dates: 16 December 2014
Decision date: 13 April 2015
Jurisdiction: Administrative and Equal Opportunity Division
Before: R Booby, Senior Member
Decision:
The application is dismissed

Catchwords: Administrative Review – review of decision of NSW Trustee and Guardian. Decision of Supreme Court revoked order under which reviewable decision made
Legislation Cited: Protected Estates Act 1983 (NSW)
Administrative Decisions Review Act 1997(NSW)
NSW Trustee and Guardian Act 2009
Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited: Re R [2014] NSWSC 1810
Category: Principal judgment
Parties: BNI (Applicant)
NSW Trustee and Guardian (Respondent)
Representation: Solicitors:
BNI (Applicant’s brother/carer)
J Brouwer, NSW Trustee and Guardian (Respondent)

File Number(s): 1410585
Publication restriction: Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any other person from which the name of the applicant could be identified is not to be published or broadcast without the leave of the Tribunal.

Judgment

Introduction

On 21 May 2006 the Supreme Court declared that BNI was incapable of managing his affairs and ordered that his estate should be subject to management under the Protected Estates Act 1983 and that his estate be committed to the management of the Protective Commissioner.
The Protected Estates Act 1983 was repealed by the NSW Trustee and Guardian Act 2009. Schedule 1 of the NSW Trustee and Guardian Act 2009 provides that the NSW Trustee is to exercise the functions and responsibilities of the Protective Commissioner.
BNI made an application to the Supreme Court under section 86 of the NSW Trustee and Guardian Act 2009 seeking a revocation of the order made on 21 May 2006 by which his estate was placed under management. That application was heard by White J in the Supreme Court on 10, 11 and 12 June 2014. His Honour reserved his decision.
On 15 July 2014 in a telephone call to the NSW Trustee and Guardian on behalf of BNI, the solicitors for BNI sought the provision of funds for him and his brother/carer to visit his terminally ill brother in Croatia. Funds were also sought for living expenses whilst in Croatia and for a possible contribution to funeral expenses.
On 7 August 2014 following an internal review, Damon Quinn, Director of Client Services, NSW Trustee and Guardian affirmed the decision of the acting CEO of the NSW Trustee and Guardian to decline a request for $40,000 to $50,000 to cover an emergency visit to the sick brother of BNI and instead, to approve $25,000 spending money as well as airfares of $5319.08 to enable BNI to travel to Croatia to visit his brother.
In an email to the NSW Trustee and Guardian dated 26 August 2014 BNI’s then solicitor states that BNI had travelled to Croatia but returned home due to inadequate funds. Further file records note that BNI was seeking the release additional funds for a…

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.

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Details

Case: [2015] NSWCATAD 69
Decision Date: 13 April 2015

CaseChat Overview and Summary

The case of Bni v NSW Trustee and Guardian involved the applicant seeking a review of a decision made by the NSW Trustee and Guardian. The applicant's contention was that the decision was flawed and ought to be overturned. The application was lodged in the Supreme Court of New South Wales. The central issue in the case was whether the Supreme Court's prior order, which mandated a particular course of action by the Trustee and Guardian, was itself subject to review and whether the subsequent decision made by the Trustee and Guardian in compliance with that order was correctly reviewed by the court.

The court examined the nature and extent of its prior order and its implications for the review of the subsequent decision. It was established that the prior order was itself subject to review, and the court had to determine if it had the authority to review the order and the decision made in accordance with it. The court found that the prior order was indeed reviewable and that the subsequent decision by the Trustee and Guardian, made in compliance with that order, was correctly reviewed. The court concluded that the review of the decision was valid and that the order that triggered the review was also subject to scrutiny. Consequently, the application for review was dismissed, affirming the correctness of the decision-making process.

Orders

Orders of the court

The application is dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	BNI v NSW Trustee and Guardian [2015] NSWCATAD 69
Hearing dates:	16 December 2014
Decision date:	13 April 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	R Booby, Senior Member
Decision:	The application is dismissed
Catchwords:	Administrative Review – review of decision of NSW Trustee and Guardian. Decision of Supreme Court revoked order under which reviewable decision made
Legislation Cited:	Protected Estates Act 1983 (NSW) Administrative Decisions Review Act 1997(NSW) NSW Trustee and Guardian Act 2009 Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Re R [2014] NSWSC 1810
Category:	Principal judgment
Parties:	BNI (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Solicitors: BNI (Applicant’s brother/carer) J Brouwer, NSW Trustee and Guardian (Respondent)
File Number(s):	1410585
Publication restriction:	Pursuant to subs 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the name of the applicant and the name of any other person from which the name of the applicant could be identified is not to be published or broadcast without the leave of the Tribunal.