DNP v NSW Trustee and Guardian

[2018] NSWCATAD 212

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	DNP v NSW Trustee and Guardian [2018] NSWCATAD 212
Hearing dates:	6 September 2018
Date of orders:	11 September 2018
Decision date:	11 September 2018
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	The decision to approve the sale of the property is affirmed.
Catchwords:	ADMINISTRATIVE LAW – merits review – where NSW Trustee and Guardian decided to approve the sale of property owned jointly by a person who is the subject of a financial management order and one of her sons – where son disagreed with the decision to sell the property – where paramount consideration is the welfare and interests of the person subject to the financial management order – correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 (NSW) NSW Trustee and Guardian Act 2009 (NSW)
Category:	Principal judgment
Parties:	DNP (Applicant) NSW Trustee and Guardian (Respondent)
Representation:	Solicitors: DNP (Self-Represented) J McCarthy (NSW Trustee and Guardian (Respondent)
File Number(s):	2018/00241574
Publication restriction:	The publication of the of the name of the applicant or any other person mentioned in these reasons for decision is prohibited pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2014 (NSW).

REASONS FOR DECISION

Overview

1. Ms X is an elderly woman who has been a permanent resident in an aged care facility since February 2016. A year earlier, in March 2015, the Tribunal appointed the NSW Trustee and Guardian as her financial manager. Exercising its powers as financial manager, the NSW Trustee and Guardian has decided to sell a property Ms X owns as a tenant in common with her son, DNP. The reason for the sale is that Ms X owes fees to the aged care facility which amounted to $132,099.35 as at 15 August 2018. Ms X is also incurring monthly fees of $7,305.60. DNP opposes the sale and has applied to the Tribunal for a review of the decision.

2. The issue for the Tribunal is whether selling the property is the ‘correct and preferable’ decision: Administrative Decisions Review Act 1997 (NSW), s 63. In deciding that issue I must observe the principles in s 39 of the NSW Trustee and Guardian Act 2009 (NSW) including the principle that “the welfare and interests of (Ms X) . . . should be given paramount consideration.”

3. Ms X has been a resident of the aged care facility for 2 ½ years. She has paid the Refundable Accommodation Deposit (RAD) of $540,000 but has not paid the ongoing daily fees. The aged care facility intends to take steps to recover the debt if it is not paid. Her accommodation is at risk. Ms X has no significant assets other than the property she owns with DNP.

4. At the hearing, DNP suggested various ways in which the debt could be paid including by the liquidators of a family trust, by his brother or from the RAD of $540,000. After some discussion about these options, DNP agreed that the only practical way in which the debt could be paid in the short term would be for him to obtain a loan of $140,000 which he said he could organise within a month.

5. Mr McCarthy, representing the NSW Trustee and Guardian, submitted that DNP has been given a reasonable opportunity to pay the debt and arrange for future fees to be paid, but has not done so. DNP did not disclose his income or assets to the Tribunal and has not made any arrangements for the payment of daily care fees. I am not satisfied that DNP will be able to secure a loan. Given that Ms X’s accommodation is at risk and there is no practical short-term alternative to paying her debts, the decision to sell the property is the correct and preferable decision.

6. I am satisfied that it is desirable to make an order prohibiting the disclosure of the name of the applicant or any other person mentioned in these reasons: Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 64(1)(a). It is an offence to publish or broadcast the name of any person to whom any proceedings in the Guardianship Division relate: NCAT Act, s 65. Although these proceedings are not in the Guardianship Division, it is desirable to maintain the privacy of people subject to financial management orders.

Parties

7. I understand that Ms X would not be capable of representing herself in these proceedings if she were to be joined as a party. I am satisfied that her views and interests have been conveyed by the NSW Trustee and Guardian and that there is no need to appoint a Guardian ad litem to represent her.

8. DNP has a brother and a sister neither of whom applied to be joined as parties. Ms X also has a niece who provided some information to the Tribunal and advised that she was available to participate in the proceedings by telephone if required. As Ms X’s niece did not apply to be joined as a party, I did not contact her and have not taken into account the information she provided.

Consideration

Jurisdiction

9. The Tribunal has jurisdiction to review the decision to approve the sale of the property: NSW Trustee and Guardian Act 2009 (NSW), s 62. I am satisfied that DNP is a person whose interests are adversely affected by the decision. He is the executor of his late father’s estate and, in that capacity, he is a tenant in common with his mother in the subject property.

Findings of fact

10. Based on the material provided by the parties and concessions made by DNP during the hearing, I make the following findings of fact:

1. As at 15 August 2018, Ms X owed the aged care facility $132,099.35;

2. Ms X is incurring monthly fees of $7,305.60;

3. the solicitors for the aged care facility have commenced debt recovery action;

4. Ms X is highly unlikely to return to live in her home which she owns as a tenant in common with DNP;

5. the property is valued at between $1,800,000 and $2,000,000;

6. the property is currently occupied but no rent is being paid;

7. in accordance with orders made by the Supreme Court on 24 June 2016, the liquidator who was appointed following the winding up of (Name deleted) Nominees Pty Ltd, distributed $540,000 to Ms X to pay the RAD to the aged care facility;

8. the RAD cannot be accessed as a source of funds to pay the debt or ongoing care fees;

9. Ms X is not currently a creditor of the (name deleted) Family Trust and the liquidator has advised that she has already received all amounts to which she is specifically entitled under the Supreme Court orders;

10. the balance of the trust fund, after payment of debts and liabilities of the trust, is to be paid to DNP and his sister (or as they direct ) in equal shares;

11. DNP has not received his share of the balance of the trust fund; and

12. DNP was on notice as of 29 May 2018 that he needed to put forward a concrete proposal to repay the debts but had not done so by the deadline of 6 July 2018.

11. At the hearing, DNP proposed that he obtain a loan of $140,000 which he said he could organise within a month. DNP provided no evidence of his income or assets saying only that his income “varied” and “comes from a number of different sources”. Given the absence of evidence about income and assets and DNP’s failure to provide a concrete proposal within a reasonable time, I am not satisfied that he has either the capacity or the intention to obtain a loan. Ms X has no other source of funds readily available to pay her debt or fund her ongoing care.

Reasoning and conclusion

12. Ms X’s accommodation in an aged care facility is at risk if she does not pay the debt which has been accruing since 10 February 2016. The only available source of funds in the short term is her share in the property. Her welfare and interests should be given paramount consideration. The correct decision is to sell the property.

Order

13. The decision to approve the sale of the property is affirmed.

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

Registrar

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: 11 September 2018