CNY v NSW Public Trustee and Guardian

Case •

[2017] NSWCATAD 25

•

16 January 2017

No judgment structure available for this case.

Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: CNY v NSW Public Trustee and Guardian [2017] NSWCATAD 25
Hearing dates: 11 November 2016
Date of orders: 16 January 2017
Decision date: 16 January 2017
Jurisdiction:Administrative and Equal Opportunity Division
Before: C Grant, Senior Member
Decision:

The decision of the NSW Public Guardian and Trustee dated 23 October 2015 to sell the property belonging to the protected person is affirmed.

Catchwords: ADMINISTRATIVE LAW – review of decision of NSW Trustee and Guardian – whether the decision to sell the property is the correct and preferable decision
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Guardianship Act 1987 (NSW)
Category:Principal judgment
Parties: CNY (Applicant)
NSW Trustee and Guardian (Respondent)
Representation: Solicitors:
CNY (Applicant in person)
NSW Trustee and Guardian
File Number(s): 1610276
Publication restriction: s.64 Civil and Administrative Tribunal Act 2013 (NSW) – no details identifying applicant, protected person or witnesses to be published.

REASONS FOR DECISION

Introduction

  1. The NSW Trustee and Guardian (NSWTG) manages the finances of the protected person pursuant to an order of the Guardianship Division of the Tribunal dated 29 January 2015. The protected person has a disability, being dementia and is unable to make important life decisions. On 23 October 2015, the NSWTG made the decision to sell the property, located in Sydney and belonging to the protected person. The protected person sought an administrative review of this decision so she can retain the property. After the application was filed the only surviving son of the protected person joined the application and has now replaced the protected person as the applicant. He also opposes the sale. The issue in these proceedings is whether the decision to sell the property is the correct and preferable decision.

Preliminary Issues

Jurisdiction

  1. The NSWTG wrote to the protected person on the 23 October 2015 setting out its decision to sell the property and detailing the reasons. The protected person did not apply for an internal review of the decision. The protected person then filed a late application with the Tribunal for administrative review of the NSWTG decision of the 23 October 2015.

  2. Under s.55(4)(b) Administrative Decisions Review Act 1997 the Tribunal can deal with an application even though the applicant has not applied for an internal review, if it is satisfied that it is necessary to deal with the application;

‘in order to protect the applicant’s interests and the application to the Tribunal was made within a reasonable time following the administrative reviewable decision of the administrator concerned’.

  1. The Applicant’s reasons for being late as set out in her application include that she has resided overseas since February 2015 and has difficulty providing instructions to her lawyer in Australia. Furthermore, she believed her son had made an application to replace the NSWTG as the financial manager.

  2. The Tribunal is satisfied that the reasons provided and the timing of the application meet the criteria set out in s55(4)(b) of the Act above and the Tribunal has jurisdiction to hear the application to review the decision of the NSWTG dated 23 October 2015.

Applicant to the proceedings

  1. The solicitor for the protected person filed the application to review the decision of the NSWTG to sell the property. The protected person has been living overseas since February 2015 being cared for by her son and his family. On the 11 October 2016, the Tribunal was informed that her solicitor had withdrawn from the matter as he could not obtain instructions. He advised the NSWTG he did not know whether his client was unable to give instructions because of hearing loss, cognitive impairment or some other incapacity. The Tribunal then joined the son as a party as he also opposed the sale of the property. On the 19 October 2016, the Tribunal received a letter from the protected person requesting her son become the applicant in these proceedings.

  2. Under s.62 of the NSW Trustee and Guardian Act 2009 an affected person may apply for administrative review including a person whose interests are, in the opinion of the Tribunal, adversely affected by the decision (s 62(2)(c). The son is the sole surviving son of the protected person who has cared for the protected person over many years and he is adversely affected by the decision and is therefore an affected person and able to make this application.

Publication restriction

  1. The Tribunal has made an order under s.64(1) of the Civil and Administrative Act 2013 prohibiting the disclosure of the name of any person, whether or not a party to the proceedings in the Tribunal or a witness summoned by, or appearing before the Tribunal.

  2. The applicant will hereinafter be referred to as ‘the son’ in this judgement.

The decision of NSWTG and subject of review

  1. The NSWTG advised the protected person by letter dated 23 October 2015 of the decision to sell the property setting out the following reasons:

  1. The property is in a condition where it cannot be tenanted without extensive repairs, which the protected person does not have sufficient funds to do;

  2. The property is the protected person’s only asset apart from a small amount of money in the NSWTG trust account of less than $200.00;

  3. The only source of income for the protected person is a pension that has been reduced to $270 p/w due to her residing overseas;

  4. There are credit card debts of over $12,000 and a debt to a real estate company of $3,626.00; and

  5. There are no other funds available to meet the cost of rates, insurance or other outgoings on the property and there is insufficient income to meet living and other expenses of the protected person.

  1. The NSWTG also state as a reason for their decision that the property cannot be rented or occupied without extensive repairs to rectify its current condition. They refer to significant modifications having been made to the property, to convert the property into 5 small flats and these modifications were made in an unsafe and unprofessional manner and without council approval. The NSWTG also state the property is zoned only for dual occupancy.

The views of the applicant, CNY

  1. The son provided a written submission and supporting documentation dated 2 September 2016. Much of the material relates to complaints by the son about the way in which the NSWTG has managed the estate of the protected person since October 2014. However as pointed out to the son during the hearing these matters are not relevant to these proceedings.

  2. CNY’s views relating to the decision to sell the property can be summarised:

  1. The property can be rented out. The son provided an undated letter from a person proposing to rent out the property for 2 years at $1,000 per month. Attached to the letter was a copy of a bank cheque in the sum of $1,000 made out to the son.

  2. The property can be renovated and repaired and maintained without any cost to the protected person. The son proposed that he can carry out all maintenance himself without any cost. He also provided a letter from a person dated 19 August 2016 stating that he is a family friend and member of the cultural community the family is from and he offered to renovate the property as required by the NSWTG and to do so, free of charge.

  3. the property has special significance to the family based on religious beliefs that the family members can meet up with other family members who have passed away in the house and therefore the property should not be sold but rented out.

Oral submissions by CNY

  1. His mother wishes to keep the house until she dies.

  2. There is a strong family and personal connection to the property especially relating to the husband and the other son of the protected person who have both passed away. It is noted that the other son only recently passed away in 2015 leaving the only surviving son, who is the applicant in these proceedings.

  3. The son can do all the work to fix up and maintain the property free of charge and at no cost to the estate. It can then be rented out and earn income for the estate.

Further material provided by CNY

  1. The son provided further photos of the house on the property including a floorplan and a photo of 3 electrical meters that are on the property. He also provided correspondence from the local council of the 8 & 24 September 2014 relating to a complaint about illegal use of the building. The letter states among other things, that the property can only be used for dual occupancy and sets out requirements that need to be put in place including having no more than two electrical meter boards.

NSWTG Submissions

  1. NSWTG provided an updated financial statement. The subject property is currently worth $1,700,000.00. The protected person has no other assets apart from a cash sum of $200.00. Her current liabilities total approximately $16,000.00. Her current income is from a limited pension of $270.00 per week and there is no prospect that this will increase at any time in the future. Without the sale of the property there is no capacity to pay these debts. Her current and future income will not enable her to pay the debts.

  2. The protected person is not living in the property. She is not receiving any income or other benefit from the property. Her debt continues to accumulate and remain outstanding. This includes rates and other outgoings on the property. There is no other option but to sell the property.

  3. The property requires extensive renovation work to be in a condition to be rented out. There are no funds in the estate to pay for this work. The letters from the Council of 8 and 24 September referred to by the applicant are not evidence that the building is approved to be rented out but rather a response to a complaint.

  4. The proposal by the son to carry out the repair work himself or have a family friend carry out the work is not acceptable. In these circumstances the NSWTG requires independent, licenced builders to carry out the work to ensure accountability.

CONSIDERATION

  1. The Tribunal is required to consider whether or not the decision to sell the property belonging to the protected person is the correct and preferable decision taking into all account all the material before it. This includes all relevant factual information and the applicable written or unwritten law. (s.63 Administrative Decisions Review Act 1997 (NSW).

  2. In making the decision to sell the property the NSWTG must consider the following principals set out in s.39 of NSW Trustee and Guardian Act 2009:

  1. the welfare and interests of such persons should be given paramount consideration,

  2. the freedom of decision and freedom of action of such persons should be restricted as little as possible,

  3. such persons should be encouraged, as far as possible, to live a normal life in the community,

  4. the views of such persons in relation to the exercise of those functions should be taken into consideration,

  5. the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

  6. such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

  7. such persons should be protected from neglect, abuse and exploitation.

  1. The NSWTG argues that selling the property is in the best interests of the protected person. It will enable the protected person to pay off her debts and use the substantial remaining funds for her ongoing future care.

  2. The son opposes the sale. He refers to the protected person’s wishes not to sell the property. The property also has special significance to the family as there is a connection to the other son and husband of the protected person who have both passed away.

  3. The son also wants the property to be rented out and the estate can earn rental income. The son argues the Council is agreeable to the buildings being rented out as a dual occupancy residency. He has a prospective tenant available to rent the property. This rental income would then be the income of the estate.

  4. The son proposes that any work and repairs on the property can be carried out by himself or by a family friend without any cost to the estate. In support of the proposal the son has provided the following:

  1. A one page letter from a family friend addressed ‘To whom it may concern’ and making the offer to support ‘all the necessary repairs needed to be carried out on the property so it can be rented as the Public Trustee standard requires’.

  2. A one page letter from the Council dated 24 September 2014 confirming the premises are approved for dual occupancy only and requiring the premises to meet certain conditions including that there are no more than two electrical meter boards on the property.

  3. Undated photos of the premises including a photo of 3 electrical meter boards on the property.

  1. On the information provided the Tribunal is not able to assess the viability of the proposal. There is no details or information on how the property is to be rented out. There is no up to date council assessment or approval of the proposed use of the property. There is no program of works to be completed, estimated costs of the works and a secured source of funding or financial resources outside the estate. There is no details of the proposed builders and tradesman and their current licencing and insurance status. There is also no correspondence or consultation with the NSWTG as to any proposed works. For these reasons the Tribunal will not consider the proposal as an option.

  2. Considering the guiding principles of s.39 of the NSW Trustee and Guardian Act 2009 the Tribunal notes that the welfare and interests of the protected person should be given paramount consideration (s.39(a)). The protected person lives overseas and does not intend to return to Australia. Her letter to the Tribunal dated 12 October 2016 states she is a citizen and resident of the overseas country where she resides. Her welfare and interests therefore appear largely to be outside Australia where she resides with her family and is cared for by her family. She has not lived in the subject property since February 2015 when she left Australia. The property is currently unoccupied and disconnected from utilities. It currently provides no income or other financial benefit to the protected person.

  3. The Tribunal also considers it is in the welfare and interests of the protected person to meet her financial commitments. She has debts of over $16,000.00 and if she retains the property she will continue to accrue other debts such as rates and outgoings on the property. There is no funds or income or other potential income to meet these debts without selling the property.

  4. The protected person has expressed the view through the applicant that she wishes to retain the property. The property has special significance to the protected person as it is connected to her other son and husband who have both passed away. These are also matters for consideration of the Tribunal (s.39(d) & s.39(e) NSW Trustee and Guardian Act 2009). However, the Tribunal also notes the finding of the Guardianship Division of the Tribunal that the protected person has an incapacity causing impaired decision making. It is difficult to know what insight or knowledge she has in relation to these matters. It is also noted that these views are expressed through the applicant son whilst the protected person resides permanently overseas and will not be returning to Australia.

  5. For the reasons outlined above and to ensure the protected person will have sufficient funds available for her ongoing care, the Tribunal finds that the correct and preferable decision is to sell the property. The Tribunal therefore affirms the decision of the NSWTG of 24 October 2015.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.


Registrar

Amendments

16 January 2017 - Corrected typographical errors

Decision last updated: 16 January 2017

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