DKF v NSW Trustee and Guardian - [2018] NSWCATAD 237

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DKF v NSW Trustee & Guardian [2018] NSWCATAD 237
Hearing dates: 19 April 2018
Date of orders: 10 October 2018
Decision date: 10 October 2018
Jurisdiction: Administrative and Equal Opportunity Division
Before: S Higgins, Senior Member
Decision:
(1) The he decision of the first respondent that the back deck and stairs of the mother’s home be replaced is varied to repair and replace (where necessary) the back deck and stairs of the mother’s home, subject to the first respondent urgently obtaining a quote from two independent licensed and appropriately experienced builders as to the costs of repairing and/or replacing the back deck and stairs as recommended in the Close Consultants report.

(2) The decision of the first respondent to lease the mother’s home on the basis of a non-renewable lease for a period 6 months each year is set aside and in substitution of that decision the following decision is made:
(a) Approval is given to DKF’s daughter and her husband to use and occupy the mother’s home on the basis of the requirements of cl 8(7)(b) of Sch 1A of the Land Tax Management Act 1956 (NSW), subject to:
(i) to DKF’s daughter and partner making a written request to the first respondent to occupy and use the mother’s home on this basis; and

(ii) the first respondent obtains independent tax and legal advice in regard to any agreement that is proposed to give effect to an occupation and use of the mother’s home on the basis of cl 8(7)(b) of Sch 1A of the Land Tax Management Act 1956 (NSW).

(3) The decision of the first respondent that DKL have ongoing use of the property in accordance with the September 2015 decision is not the correct and preferred decision and is set aside and remitted for reconsideration by the first respondent in accordance with the findings and recommendations in these reasons for decision.
(4) The respondent’s decision the subject of review is otherwise affirmed.
Catchwords: ADMINISTRATIVE LAW – merits review – where NSW Trustee & Guardian decided to lease and approve repairs to the former matrimonial home of the mother (a “protected person” and subject to a financial management order) of the applicants and the second respondent – the applicants disagreed with the decision and sought to have the first respondent approve the first applicant’s daughter move into the home as caretaker – the second respondent agreed with the decision of the first respondent – where paramount consideration is the welfare and interests of the protected person – correct and preferable decision.
Legislation Cited: Administrative Decision Review Act 1997 (NSW)
Guardianship Act 1987 (NSW)
Land Tax Management Act 1956 (NSW)
NSW Trustee and Guardian Act 2009 (NSW)
NSW Trustee and Guardian Regulation 2017 (NSW)
Cases Cited: L v L [2014] NSWSC 1686
Category: Principal judgment
Parties: DKF (First Applicant)
DKG (Second Applicant)
NSW Trustee & Guardian (First Respondent)
DKL (Second Respondent)
Representation: Solicitors:
First and Second Applicant in…

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: [2018] NSWCATAD 237
Decision Date: 10 October 2018

CaseChat Overview and Summary

The applicants, DKF, sought a review of decisions made by the NSW Trustee and Guardian concerning the former matrimonial home of the mother, a protected person under a financial management order. The applicants disagreed with the decision to lease the home and approve repairs to it, and instead sought to have the first applicant's daughter move into the home as a caretaker. The second respondent supported the first respondent's decision. The court was required to determine whether the decisions made by the NSW Trustee and Guardian were lawful, reasonable, and in the best interests of the protected person.

The court found that the paramount consideration in this case was the welfare and interests of the protected person. The court found that the decision to replace the back deck and stairs was not the correct and preferable decision and should be varied to repair and replace the deck and stairs as necessary, subject to obtaining quotes from independent builders. The court also found that the decision to lease the home on a non-renewable basis for six months each year was not in the best interests of the protected person and set it aside. Instead, the court approved the use and occupation of the home by the first applicant's daughter and her husband, subject to certain conditions. The court found that the decision to allow ongoing use of the property by DKL was not the correct and preferable decision and set it aside for reconsideration.

The court varied the decision of the NSW Trustee and Guardian in relation to the repairs to the back deck and stairs, set aside the decision to lease the home on a non-renewable basis, and approved the use and occupation of the home by the first applicant's daughter and her husband. The court also set aside the decision to allow ongoing use of the property by DKL and remitted it for reconsideration. The court affirmed the other decisions of the NSW Trustee and Guardian.

Orders

Orders of the court

(1) The he decision of the first respondent that the back deck and stairs of the mother’s home be replaced is varied to repair and replace (where necessary) the back deck and stairs of the mother’s home, subject to the first respondent urgently obtaining a quote from two independent licensed and appropriately experienced builders as to the costs of repairing and/or replacing the back deck and stairs as recommended in the Close Consultants report.

(2) The decision of the first respondent to lease the mother’s home on the basis of a non-renewable lease for a period 6 months each year is set aside and in substitution of that decision the following decision is made:

(a) Approval is given to DKF’s daughter and her husband to use and occupy the mother’s home on the basis of the requirements of cl 8(7)(b) of Sch 1A of the Land Tax Management Act 1956 (NSW), subject to:

(i) to DKF’s daughter and partner making a written request to the first respondent to occupy and use the mother’s home on this basis; and

(ii) the first respondent obtains independent tax and legal advice in regard to any agreement that is proposed to give effect to an occupation and use of the mother’s home on the basis of cl 8(7)(b) of Sch 1A of the Land Tax Management Act 1956 (NSW).

(3) The decision of the first respondent that DKL have ongoing use of the property in accordance with the September 2015 decision is not the correct and preferred decision and is set aside and remitted for reconsideration by the first respondent in accordance with the findings and recommendations in these reasons for decision.

(4) The respondent’s decision the subject of review is otherwise affirmed.

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:	DKF v NSW Trustee & Guardian [2018] NSWCATAD 237
Hearing dates:	19 April 2018
Date of orders:	10 October 2018
Decision date:	10 October 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	S Higgins, Senior Member
Decision:	(1) The he decision of the first respondent that the back deck and stairs of the mother’s home be replaced is varied to repair and replace (where necessary) the back deck and stairs of the mother’s home, subject to the first respondent urgently obtaining a quote from two independent licensed and appropriately experienced builders as to the costs of repairing and/or replacing the back deck and stairs as recommended in the Close Consultants report. (2) The decision of the first respondent to lease the mother’s home on the basis of a non-renewable lease for a period 6 months each year is set aside and in substitution of that decision the following decision is made: (a) Approval is given to DKF’s daughter and her husband to use and occupy the mother’s home on the basis of the requirements of cl 8(7)(b) of Sch 1A of the Land Tax Management Act 1956 (NSW), subject to: (i) to DKF’s daughter and partner making a written request to the first respondent to occupy and use the mother’s home on this basis; and (ii) the first respondent obtains independent tax and legal advice in regard to any agreement that is proposed to give effect to an occupation and use of the mother’s home on the basis of cl 8(7)(b) of Sch 1A of the Land Tax Management Act 1956 (NSW). (3) The decision of the first respondent that DKL have ongoing use of the property in accordance with the September 2015 decision is not the correct and preferred decision and is set aside and remitted for reconsideration by the first respondent in accordance with the findings and recommendations in these reasons for decision. (4) The respondent’s decision the subject of review is otherwise affirmed.
Catchwords:	ADMINISTRATIVE LAW – merits review – where NSW Trustee & Guardian decided to lease and approve repairs to the former matrimonial home of the mother (a “protected person” and subject to a financial management order) of the applicants and the second respondent – the applicants disagreed with the decision and sought to have the first respondent approve the first applicant’s daughter move into the home as caretaker – the second respondent agreed with the decision of the first respondent – where paramount consideration is the welfare and interests of the protected person – correct and preferable decision.
Legislation Cited:	Administrative Decision Review Act 1997 (NSW) Guardianship Act 1987 (NSW) Land Tax Management Act 1956 (NSW) NSW Trustee and Guardian Act 2009 (NSW) NSW Trustee and Guardian Regulation 2017 (NSW)
Cases Cited:	L v L [2014] NSWSC 1686
Category:	Principal judgment
Parties:	DKF (First Applicant) DKG (Second Applicant) NSW Trustee & Guardian (First Respondent) DKL (Second Respondent)
Representation:	Solicitors: First and Second Applicant in…