DKC v NSW Trustee and Guardian

[2018] NSWCATAD 167

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DKC v NSW Trustee and Guardian [2018] NSWCATAD 167
Hearing dates:	15 June 2018
Date of orders:	03 August 2018
Decision date:	03 August 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Grant Senior Member
Decision:	The respondent’s decision to decline claim for reimbursement of expenses is affirmed.
Catchwords:	ADMINISTRATIVE LAW – review of decision of NSW Trustee and Guardian to decline a claim for reimbursement of expenses from protected person’s estate – principles followed by NSWTG to the reimbursement of expenditure from protected person’s estate –- sufficiency of supporting evidence - whether decision 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:	CVR (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Applicant – self-represented Respondent – Crown Solicitor
File Number(s):	2018/00083622
Publication restriction:	Pursuant to section 65 of the Civil and Administrative Tribunal Act 2013, a person must not without the consent of the Tribunal, publish, or broadcast the name of any person who appears as a witness in these proceedings, to whom these proceedings relate, or is mentioned or otherwise involved in the proceedings. The name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. The provision of these reasons (with persons identified) is not intended to be a publication or broadcasting of an official report of the proceedings.

Reasons for decision

Background

1. This is an application to review a decision of the NSW Trustee and Guardian (NSWTG) to decline a request for reimbursement of expenses from the protected person’s estate.

2. The protected person will be referred to as ‘RDC’ in these reasons. RDC is an 84 year old man who permanently resides in an aged care facility. He is widowed and has three adult children. He has a female friend, DKC with whom he has been in a close relationship for a number of years. DKC is the applicant in these proceedings.

3. By order of NCAT (Guardianship Division) dated 3 June 2016, RDC’s financial affairs are managed by the NSWTG. The order was based on a finding that RDC was incapable of managing his own financial affairs due to a diagnosis of dementia and impaired cognitive functioning.

4. The applicant, DKC claims she incurred significant expenses on behalf of RDC. She sought reimbursement from the NSWTG for these expenses. The claim was more than $200,000.

5. RDC’s children opposed the claim by DKC.

6. On the 15 June 2016, the NSWTG decided to decline the claim on the basis that there was insufficient supporting evidence.

7. DKC sought a review of the decision and on 3 April 2017, the internal reviewer affirmed the original decision.

8. By email to DKC dated 17 November 2017, the NSWTG advised that the further documents provided by DKC did not provide any new evidence to overturn the original decision.

9. On 15 March 2018, DKC filed an application with NCAT to review the decision of the NSWTG of 17 November 2017.

10. For the reasons set out below, the Tribunal has decided to affirm the decision of the NSWTG to decline the request by DKC to be reimbursed from RDC’s estate.

Jurisdiction and Applicable Law

11. The applicant is eligible to make an application under s.62 NSW Trustee and Guardian Act 2009 being a person who in the opinion of the Tribunal, is an ‘affected person’, adversely affected by the decision. DKC was a close friend of RDC. She appears to have incurred some expenditure that may relate to the financial affairs of RDC. A decision to decline her claim for reimbursement of expenses will adversely affect her.

12. The application to review the administratively reviewable decision falls outside the 28 day period for filing the review. However, the Tribunal notes the interests of DKC in the matter and that the NSWTG did not take issue with this failure and the Tribunal extends the period for filing the review application: see Administrative Decisions Review Act 1997 (NSW), s 58(3).

13. The role of the Tribunal in reviewing that decision is to determine the correct and preferable decision having regard to the material before it and the applicable law: see Administrative Decisions Review Act 1997 (NSW), s 63(1). The orders the Tribunal can make on an application for review include an order to affirm the decision of the NSWTG, or an order to set aside the decision of the NSWTG and in substitution thereof making another decision see Administrative Decisions Review Act, s 63(3) and the Act,

14. The Tribunal is guided by section 39 of NSW Trustee and Guardian Act 2009 that sets out the general principles of managing the estates of persons incapable of managing their financial affairs. The principles relevant to this case are:

(a) the welfare and interests of such persons should be given paramount consideration,

(e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(g) such persons should be protected from neglect, abuse and exploitation.

Publication restriction

15. Due to the sensitive nature of these proceedings the Tribunal has made the order under s 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of the Applicant, the protected person and other family members, are not to be published without leave of the Tribunal.

Documents before the Tribunal

16. The Tribunal considered the following material:

1. NCAT Reasons for Decision for interim orders made on 14 March 2016 and final orders made 3 June 2016

2. Emails from DKC dated 25.26 & 31 May 2016. Letters from DKC dated 21 April 2016, 6 February 2017, 28 July 2017

3. Letter from RDC adult children dated 5 June 2016 and 2 May 2017.

4. Bundle of bank statements, receipts, invoices, quotes, letters and other financial records provided by DKC

5. Hand written authority dated 27 July 2016

6. Internal review decision of the NSWTG dated 3 April 2017

Preliminary issues

Proposed purchase of unit in Homebush

17. Prior to RDC being admitted into an aged care facility and when RDC and DKC were living together, they apparently agreed to purchase a unit in Homebush. The contract was in both names and signed on the 22 May 2015. The contract stipulated that the unit would be owned by DKC and RDC as joint tenants with 50% ownership to each party. DKC claims she paid the entire deposit of $65,000 to the vendor pursuant to the contract. She also claimed that RDC agreed to fund his share of the purchase of the Homebush unit from the sale of his own Waitara unit property.

18. On the 14 March 2016, NCAT (Guardianship Division) made an interim financial management order appointing the NSWTG to be RDC’s financial manager. On 20 April 2016, the NSWTG received the sum of $504,823.01 being the proceeds of sale from the Waitara unit owned by RDC. On 23 May 2016, the NSWTG decided not to proceed with the purchase of the Homebush unit. The reasons for the decision was RDC did not have sufficient funds to complete the purchase. This was because RDC was required to pay the Refundable Accommodation Deposit (RAD) of $295,000 to secure his current accommodation at the aged care facility. DKC requested an internal review of this decision from the NSWTG and on 7 July 2016, the internal reviewer affirmed the decision.

19. The vendors of the Homebush unit refused to rescind the contract of sale and the deposit of $65,000 was forfeited.

Handwritten authority purported to be signed by RDC

20. The section 58 documents provided by the NSWTG included a handwritten authority purported to be signed by RDC. The authority is dated 27 July 2016 and states that RDC authorises the payment of $120,000 to DKC for overseas holidays and a further $10,000 to DKC for renovations to the Waitara unit. In her evidence to the Tribunal, DKC agreed that she prepared this document and that RDC signed the document “because he understood it”. The Tribunal noted this occurred after the NCAT (Guardianship Division) made a finding on the 3 June 2016 that RDC did not have capacity to manage his financial affairs. The NSWTG representative told the Tribunal that there is an ongoing investigation by NSWTG about this issue.

Claims not pursued by DKC

21. DKC’s original claim against RDC’s estate included a claim for $120,000 that DKC claimed she lent to RDC over a 10 year period to pay for his expenses incurred during holiday trips where they travelled together to the United Kingdom, China, Fiji, New Zealand, Singapore and the United States of America. The NSWTG rejected this claim as there was no accounting or evidence provided to support this claim. During the hearing, DKC conceded this claim was not supported by evidence and told the Tribunal she no longer wished to pursue this part of her claim. The Tribunal agreed.

22. DKC’s original claim also included a claim for $10,000 that DKC claimed she paid for renovations to the Waitara unit owned by RDC. However, during the hearing she told the Tribunal that she no longer wished to pursue this claim. The Tribunal agreed.

Details of DKC’s claims, related evidence and findings

Claim 1 – Deposit of $65,000 paid on 22 May 2015 pursuant to contract to purchase Homebush unit

23. The NSWTG rejected this claim. DKC provided bank statements in her name that recorded a bank cheque withdrawal of $64,500 on 20 May 2015. However, the bank statement also recorded on 14 May 2015, a deposit into the DKC’s account in the name of the protected person [RDC] in the sum of $20,000 and on the same day a further unidentified cheque deposit into DKC’s account in the sum of $25,470.34. The evidence is therefore unclear as to the source of the payment of $65,000. The NSWTG also submitted that RDC was unlikely to have had capacity to enter a contract to purchase a unit given his likely psychological state at the time.

24. DKC told the Tribunal that she paid the entirety of the $65,000 as supported by her bank statement record of the 20 May 2015. DKC denied the deposit from [RDC] of $20,000 or other unidentified deposits related to payment of the deposit. She told the Tribunal that the payment of $20,000 into her account on 14 May 2015 was paid by RDC but this was to reimburse her for travel expenses she had incurred on his behalf. She also believed that RDC had capacity to sign the contract to purchase on the 22 May 2015.

25. RDC’s daughter wrote to the NSWTG on 5 June 2016 and disputed this claim by DKC. She wrote, “As previously advised, in December 15, myself, my husband and brother sighted two deposit receipts dated 15 May, one in [DKC]’s name and one in Dad’s name. [DKC] told us Dad’s share of the deposit was transferred from Dad’s bank account to hers and she made the full deposit payment out of her bank account. Dad’s bank statement will be able to confirm his transaction.”

26. RDC’s daughter submitted a further letter to the NSWTG dated 2 May 2017 and wrote that she believed her father’s signature on the contract of sale for the Homebush unit was highly questionable.

27. The Tribunal affirms the decision of the NSWTG to reject this claim.

28. The bank statements provided by DKC were insufficient to support the claim that DKC paid the sum of $65,000 herself. That is, there were several unexplained and substantial cash and cheque deposits into DKC’s account in May 2015. There was also no supporting evidence for DKC’s claim that the sum of $20,000 paid by RDC on the 14 May 2015 into DKC’s account was to reimburse her for travel expenses.

29. There is also some doubt as to the capacity of RDC on 22 May 2015 to enter the contract of sale for the Homebush unit. RDC’s daughter believed her father’s signature on the contract of sale was questionable. The NCAT (Guardianship Division) on 14 March 2016 when making an interim financial management order, raised the issue of possible incapacity of RDC over the preceding 12 month period. The Reasons for Decision state at paragraph 19;

The Tribunal takes into account that the medical evidence provided by Dr Bune indicates [RDC] may have an underlying dementia with cognitive decline noted in the last 12 months.

Claim 2 – Legal fees re sale of Waitara unit in sum of $1,006.26

30. DKC provided her bank statement to record payment to the solicitor on 18 January 2016 in the sum of $206.24. DKC told the Tribunal that she paid the remaining $800.00 by cash but had no cash receipt.

31. The NSWTG agree that there is evidence to support the claim that DKC paid $206.24 to the solicitors in payment of this account. However, payment of the remaining $800.00 is not supported by any evidence.

32. The Tribunal finds that DKC paid the sum of $206.24 in part payment for legal fees associated with the sale of the Waitara unit.

33. The Tribunal finds the claim that DKC paid the remaining $800.00 is not supported by any evidence and the Tribunal affirms the NSWTG decision in respect of the sum of $800.00 to reject his claim.

Claim 3 – Real estate advertising fees for the sale of Waitara unit in sum of $1,865.

34. DKC told the Tribunal she paid this account by her own cash payment.

35. The NSWTG reject this claim on the basis there is no evidence to support the claim that DKC paid this account. That is, there is a receipt in the name of [RDC] for the sum of $1,865 but no reference to DKC.

36. The Tribunal affirms the decision of the NSWTG for the reasons provided.

Claim 4 – Post office hire and mail redirection in sum of $298.90

37. DKC provided receipts from Australia Post related to services provided from 29 May 2016 to 29 May 2017.

38. The NSWTG reject this claim on the basis that the service was provided after the NSWTG was appointed financial manager and DKC had no authority to make this arrangement.

39. The Tribunal affirms the decision of the NSWTG for the reasons provided.

Claim 5 – Rental from 10/1/16 to 27/6/16 in sum of $13,798.00

40. DKC told the Tribunal that she was claiming half of this rental as RDC lived with her in a unit owned by a friend. To support the claim, she provided monthly rental receipts in her name. She agreed there was no rental agreement as the matter was between friends. She also agreed that RDC was admitted into an aged care facility from 21 April 2016 and did not use the accommodation but she believed he would be returning to live in unit.

41. The NSWTG reject this claim. There was no rental or lease agreement between the parties. The rental receipts do not state any details such as the address, owners of the property and only refer to DKC and the cash amount paid. There is also included a claim for repairs to insinkerator in the sum of $440.00 which is a cost properly incurred by the landlord. This claim is also rejected.

42. RDC’s daughter in her letter to NSWTG of 5 June 2016 disputed this claim and wrote that she understood from [DKC] that they were house minding for a friend who was overseas for an extended period and in any event, her father had only lived in the residence for 4 to 5 weeks.

43. The Tribunal affirms the decision of the NSWTG. It notes the evidence of DKC that the premises were owned by her friend. It also agrees the supporting evidence is insufficient to support this claim.

Claim 6 - Replacement of air conditioner controller for Waitara unit in sum of $330

44. DKC told the Tribunal that she paid this account in cash but did not have a receipt.

45. The NSWTG reject this claim. DKC provided only a quotation with no evidence of payment.

46. The Tribunal affirms the decision of the NSWTG for the reasons provided.

Claim 7 – Hire storage, jumbo box and locker fees in sum of $3,262.85

47. DKC claimed storage fees for jointly owned furniture for six months from January 2016. She used her own credit card to pay these fees but no longer has access to her credit card records.

48. The NSWTG reject this claim. The receipts record automatic payments from a credit card and DKC has not provided any credit card statements to support her claim that it was her credit card in her name. Further, half of these fees claimed would be the responsibility of DKC.

49. The Tribunal affirms the decision of the NSWTG for the reasons provided.

Claim 8 – Small TV parts in sum of $174.96

50. DKC claims she paid this account from her own funds.

51. The NSWTG rejects this claim. One of the receipts is from 2014. There is no evidence such as bank or credit card statements that show she provided these funds.

52. The Tribunal affirms the decision of the NSWTG for the reasons provided.

Claim 9 – TV set and TV/ Video cable in sum of $354.98

53. DKC claims she paid this account from her own funds. She also agreed that the TV and video set were delivered to an address that was not the address of either DKC or RDC. She told the Tribunal; “sometime in the future we would use the TV”.

54. The NSWTG reject his claim. There is no evidence such as bank or credit card statements that show DKC provided these funds. They also note the item was delivered to a different address to either DKC or RDC.

55. The Tribunal affirms the decision of the NSWTG for the reasons provided.

Claim 10 – Removal fees in the sum of $1,200

56. DKC claims 50% of these fees. She told the Tribunal that she paid these fees by a cash payment.

57. The NSWTG reject this claim. There is no evidence such as bank or credit card statements that show she provided these funds.

58. The Tribunal affirms the decision of the NSWTG for the reasons provided.

Claim 11 - Strata Fees in the sum of $910.53

59. DKC originally claimed these fees but told the Tribunal she agreed that RDC paid these fees and she no longer pursues this claim.

Claim 12 – Cleaning Waitara unit in the sum of $300.00

60. DKC claimed these fees by a cash payment.

61. The NSWTG reject this claim. There is no evidence such as bank or credit card statements that show she provided these funds.

62. The Tribunal affirms the decision of the NSWTG for the reasons provided.

Claim 13 – Stamps and fax fees in the sum of $13.50

63. DKC claimed these costs of mailing mobile phone invoices to the NSWTG.

64. The NSWTG rejects this claim. These costs were incurred after the financial management order was in place and this expenditure was not authorised by the financial manager.

65. The Tribunal affirms the decision of the NSWTG for the reasons provided.

Allegations of unauthorised withdrawals

66. RDC’s daughter wrote in her letter of 5 June 2016 that [DKC] had withdrawn approximately $4,000.00 from her father’s account while he was in hospital in March 2016. These withdrawals have not been accounted for by DKC. In the NCAT Reasons for Decision of 14 March 2016 the Tribunal referred to evidence from [DKC] that she had visited RDC in hospital in March 2016 and he had given her the pin number to his bank account so she could attend to the bills requiring payment.

67. The NSWTG representative told the Tribunal that the allegation of unauthorised withdrawals was being investigated

Conclusion

68. The Tribunal finds that the clear majority of the claims made by DKC lacked either supporting evidence or were expenses that RDC was not liable for. The only claim that was supported by evidence was part of claim 2 being for $206.24 paid by DKC relating to solicitor fees payable by RDC. However, the Tribunal does not agree to alter the decision of the NSWTG and substitute a decision to pay this sum. The Tribunal did not find DKC to be a credible witness. She made numerous claims that were not supported by evidence. The Tribunal was also concerned about the allegations that DKC made substantial unauthorised withdrawals from RDCs bank account and this allegation is currently being investigated by the NSWTG. It is also concerned about the handwritten authority prepared by DKC purported to be signed by RDC on 27 July 2016 and authorising DKC to be paid the sum of $130,000 from RDC’s funds. This authority was purportedly signed by RDC after a finding by NCAT that RDC was incapable of managing his financial affairs. This authority prepared by DKC gives rise to the possibility of elder abuse and is also being investigated by the NSWTG.

68. Based on the principles of ensuring the welfare and interests of the incapacitated person and that such persons are protected from neglect, abuse and exploitation, the Tribunal affirms the decision of the NSWTG.

Order

70. The respondent’s decision to decline claim for reimbursement of expenses is affirmed.

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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

Decision last updated: 03 August 2018