CQH (No 2) - [2023] NSWCATGD 23

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: CQH (No 2) [2023] NSWCATGD 23
Hearing dates: 18 October 2023
Date of orders: 18 October 2023
Decision date: 18 October 2023
Jurisdiction: Guardianship Division
Before: C P Fougere, Principal Member
M Bain, Senior Member (Professional)
K J McIvor, General Member (Community)
Decision:
The oral request for an adjournment made by the applicant (FZG) is refused.
The application for a financial management order for CQH is dismissed after hearing.
The application for a guardianship order for CQH is dismissed after hearing.
In relation to the enduring power of attorney made by CQH on 11 May 2009 which appointed TNH as attorney(s) the Tribunal determines, orders or declares:
not to carry out a review of the operation and effect of the enduring power of attorney.
The oral request for an adjournment made by the applicant (FZG) is refused.

Catchwords:
GUARDIANSHIP – application for guardianship and financial management orders – whether the Tribunal has jurisdiction to make orders where the subject person is now a permanent resident of another state – extraterritorial application of Guardianship Act 1987 (NSW) – rebuttable presumption – no jurisdiction to make orders – applications dismissed
REVIEW OF AN ENDURING POWER OF ATTORNEY – application to review the operation and effect of an enduring power of attorney – allegations of mismanagement of the principal’s finances by the attorney – no evidence that the attorney is not acting in the principal’s interests – no evidence of breach of fiduciary obligations by attorney – decision not to carry out a review of the operation and effect of the enduring power of attorney
INTERLOCUTORY – application for an adjournment – procedural fairness – guiding principle in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) – adjournment not in the subject person’s welfare and interests – adjournment request refused

Legislation Cited:
Guardianship Act 1987 (NSW), ss 4, 4(a)
Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(1), 38, 38(2), 38(5)(c), 38(6)(a)-(b), 51, 64(1)(d); cl 5(1) of Sch 6
Powers of Attorney Act 2003 (NSW), ss 12(1), 19(1), 33(1)-(2), 36, 36(1), 36(4)

Cases Cited:
Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95
MGV [2017] NSWCATGD 40
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516

Texts Cited:
None cited.

Category: Principal judgment
Parties:
001: Review of an Enduring Power of Attorney

CQH (the person)
FZG (applicant)
TNH (attorney)
NSW Trustee and Guardian

002: Financial Management Application

CQH (the person)
FZG (applicant)
TNH (attorney)
NSW Trustee and Guardian

003: Guardianship Application
CQH (the person)
FZG (applicant)
TNH (enduring guardian)
Public Guardian
Representation: Nil.

File Number(s): NCAT 2023/00290038
Publication restriction: Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.

overview

CQH…

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 CQH (No 2)

Details

AGLC: CQH (No 2) [2023] NSWCATGD 23
Case: [2023] NSWCATGD 23
Decision Date: 18 October 2023

CaseChat Overview and Summary

In the matter of CQH (No 2), the applicants sought various orders from the New South Wales Civil and Administrative Tribunal. The applicants sought a financial management order and a guardianship order for CQH, as well as a review of an enduring power of attorney made by CQH on 11 May 2009 appointing TNH as attorney. The applicants also sought an adjournment of the proceedings.

The legal issues before the Tribunal included whether it had jurisdiction to make the guardianship and financial management orders, given that CQH was now a permanent resident of another state. The Tribunal also had to determine whether there was sufficient evidence to review the operation and effect of the enduring power of attorney and whether an adjournment of the proceedings would be in the best interests of CQH.

The Tribunal found that it did not have jurisdiction to make the guardianship and financial management orders, as there was a rebuttable presumption under the Guardianship Act 1987 (NSW) that extraterritorial applications for such orders should not be made. The Tribunal found that the applicants had not rebutted this presumption. The Tribunal also found that there was no evidence to suggest that TNH was not acting in CQH's best interests or that TNH had breached any fiduciary obligations. The Tribunal found that an adjournment of the proceedings would not be in CQH's best interests and so refused the request for an adjournment.

The Tribunal dismissed the applications for a financial management order and a guardianship order for CQH. The Tribunal also determined that it would not carry out a review of the operation and effect of the enduring power of attorney. The oral request for an adjournment made by the applicant (FZG) was also refused.

Orders

Orders of the court

The oral request for an adjournment made by the applicant (FZG) is refused.

The application for a financial management order for CQH is dismissed after hearing.

The application for a guardianship order for CQH is dismissed after hearing.

In relation to the enduring power of attorney made by CQH on 11 May 2009 which appointed TNH as attorney(s) the Tribunal determines, orders or declares:

not to carry out a review of the operation and effect of the enduring power of attorney.

The oral request for an adjournment made by the applicant (FZG) is refused.

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:	CQH (No 2) [2023] NSWCATGD 23
Hearing dates:	18 October 2023
Date of orders:	18 October 2023
Decision date:	18 October 2023
Jurisdiction:	Guardianship Division
Before:	C P Fougere, Principal Member M Bain, Senior Member (Professional) K J McIvor, General Member (Community)
Decision:	The oral request for an adjournment made by the applicant (FZG) is refused. The application for a financial management order for CQH is dismissed after hearing. The application for a guardianship order for CQH is dismissed after hearing. In relation to the enduring power of attorney made by CQH on 11 May 2009 which appointed TNH as attorney(s) the Tribunal determines, orders or declares: not to carry out a review of the operation and effect of the enduring power of attorney. The oral request for an adjournment made by the applicant (FZG) is refused.
Catchwords:	GUARDIANSHIP – application for guardianship and financial management orders – whether the Tribunal has jurisdiction to make orders where the subject person is now a permanent resident of another state – extraterritorial application of Guardianship Act 1987 (NSW) – rebuttable presumption – no jurisdiction to make orders – applications dismissed REVIEW OF AN ENDURING POWER OF ATTORNEY – application to review the operation and effect of an enduring power of attorney – allegations of mismanagement of the principal’s finances by the attorney – no evidence that the attorney is not acting in the principal’s interests – no evidence of breach of fiduciary obligations by attorney – decision not to carry out a review of the operation and effect of the enduring power of attorney INTERLOCUTORY – application for an adjournment – procedural fairness – guiding principle in s 36 of the Civil and Administrative Tribunal Act 2013 (NSW) – adjournment not in the subject person’s welfare and interests – adjournment request refused
Legislation Cited:	Guardianship Act 1987 (NSW), ss 4, 4(a) Civil and Administrative Tribunal Act 2013 (NSW), ss 36, 36(1), 38, 38(2), 38(5)(c), 38(6)(a)-(b), 51, 64(1)(d); cl 5(1) of Sch 6 Powers of Attorney Act 2003 (NSW), ss 12(1), 19(1), 33(1)-(2), 36, 36(1), 36(4)
Cases Cited:	Chi v Roger Fuller Pty Limited [2018] NSWCATAP 95 MGV [2017] NSWCATGD 40 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 Susan Elizabeth Parker v Margaret Catherine Higgins & Ors [2012] NSWSC 1516
Texts Cited:	None cited.
Category:	Principal judgment
Parties:	001: Review of an Enduring Power of Attorney CQH (the person) FZG (applicant) TNH (attorney) NSW Trustee and Guardian 002: Financial Management Application CQH (the person) FZG (applicant) TNH (attorney) NSW Trustee and Guardian 003: Guardianship Application CQH (the person) FZG (applicant) TNH (enduring guardian) Public Guardian
Representation:	Nil.
File Number(s):	NCAT 2023/00290038
Publication restriction:	Decisions of the Guardianship Division of the Civil and Administrative Tribunal have been anonymised to remove any information that may identify any person involved in the Tribunal’s proceedings: Civil and Administrative Tribunal Act 2013 (NSW), s 65.