DOZ v NSW Trustee and Guardian - [2021] NSWCATAD 280

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: DOZ v NSW Trustee and Guardian [2021] NSWCATAD 280
Hearing dates: 1 September 2021
Date of orders: 28 September 2021
Decision date: 28 September 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: P H Molony, Senior Member
Decision:
The decision made by the NSW Trustee to sell FCO’s property is affirmed.

Catchwords:
ADMINISTRATIVE REVIEW — financial management — where managed persons estate committed to NSW Trustee and Guardian — where NSW Trustee and Guardian made decisions to sell of protected person’s home— where protected person’s sons living in home – where substantial debts owed by protected person’s estate that cannot be paid without sale of property — whether correct and preferable decision

Legislation Cited:
Administrative Decisions Review Act 1997
Civil and Administrative Tribunal Act 2013
NSW Trustee and Guardian Act 2009
Residential Tenancies Act 2010

Cases Cited:
BEY v NSW Trustee and Guardian [2014] NSWCATAD 8
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
EPO v NSW Trustee and Guardian [2021] NSWCATAD 220
Protective Commissioner v. D & Ors (2004) NSWCA 216

Category: Principal judgment
Parties: DOZ – applicant
ERN – applicant
NSW Trustee and Guardian – respondent
Representation:
Solicitors:
Applicants - M Turner, Legal Aid NSW
Respondent – C Zucker, ZuckerLegal

File Number(s): 2021/00165995
Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the disclosure of the names of the applicants, the protected person and their family members is prohibited.

REAsons for decision

This administrative review proceeding relates to a decision by the NSW Trustee and Guardian as manager of the estate of a protected person (FCO) to sell his home. FCO’s estate was committed to management of the NSW Trustee and Guardian by an order made in the Tribunal’s Guardianship Division.
Given those circumstances, of my own motion I will order that the disclosure of the names of the applicants, the protected person, and their family members is prohibited. In these reasons they will be referred to by acronyms.

Background.

FCO is a 76-year-old man with dementia, with severe cognitive impairment. He has been a permanent resident of an aged care facility in Victoria since April 2019. Before then, he was a resident of an aged care facility in New South Wales from March 2017. This followed an admission to two Hospitals where his cognitive impairment was diagnosed, following concerns about his well-being while being cared for at home.
On 25 February 2021 the NSW Trustee and Guardian made a decision to sell the property where he had lived, with three of his sons DOZ, ERN and FCX (since deceased). The applicants, DOZ and ERN, say they received the decision dated 16 March 2021 and then sought an internal review.
The internal review letter affirming the decision is dated 25 May 2021. It noted and rejected offers made by and on behalf of DOZ and ERN which would allow them to continue to occupy the property. This included offers…

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: [2021] NSWCATAD 280
Decision Date: 28 September 2021

CaseChat Overview and Summary

In the case of DOZ v NSW Trustee and Guardian, the dispute arose from decisions made by the NSW Trustee and Guardian concerning the sale of a protected person's home. The protected person, referred to as FCO, had substantial debts that necessitated the sale of the property to meet financial obligations. FCO's sons resided in the home, adding a layer of complexity to the decision-making process. The case was heard in the relevant court, which was tasked with determining whether the decision to sell the property was correct and preferable under the circumstances.

The central legal issues involved the appropriateness of the NSW Trustee and Guardian's decisions regarding the sale of FCO's home. The court had to consider the balance between the financial needs of the estate and the impact on FCO's sons, who were living in the property. It was also necessary to evaluate whether the decisions complied with the relevant statutory and common law frameworks governing the administration of estates and the rights of protected persons.

Upon examining the evidence and arguments presented, the court found that the decision to sell FCO's property was both correct and preferable. The court determined that the financial necessity to address the substantial debts outweighed the personal impact on FCO's sons. The court affirmed the decision made by the NSW Trustee and Guardian, concluding that the sale was a reasonable course of action under the specific circumstances of the case. The decision underscored the importance of prioritising the financial stability of the estate while also considering the welfare of those directly affected by the decisions.

Orders

Orders of the court

The decision made by the NSW Trustee to sell FCO’s property is 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:	DOZ v NSW Trustee and Guardian [2021] NSWCATAD 280
Hearing dates:	1 September 2021
Date of orders:	28 September 2021
Decision date:	28 September 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	P H Molony, Senior Member
Decision:	The decision made by the NSW Trustee to sell FCO’s property is affirmed.
Catchwords:	ADMINISTRATIVE REVIEW — financial management — where managed persons estate committed to NSW Trustee and Guardian — where NSW Trustee and Guardian made decisions to sell of protected person’s home— where protected person’s sons living in home – where substantial debts owed by protected person’s estate that cannot be paid without sale of property — whether correct and preferable decision
Legislation Cited:	Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 NSW Trustee and Guardian Act 2009 Residential Tenancies Act 2010
Cases Cited:	BEY v NSW Trustee and Guardian [2014] NSWCATAD 8 Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409 EPO v NSW Trustee and Guardian [2021] NSWCATAD 220 Protective Commissioner v. D & Ors (2004) NSWCA 216
Category:	Principal judgment
Parties:	DOZ – applicant ERN – applicant NSW Trustee and Guardian – respondent
Representation:	Solicitors: Applicants - M Turner, Legal Aid NSW Respondent – C Zucker, ZuckerLegal
File Number(s):	2021/00165995
Publication restriction:	Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 the disclosure of the names of the applicants, the protected person and their family members is prohibited.