DVB v NSW Trustee and Guardian

Case [2021] NSWCATAD 105


Civil and Administrative Tribunal


New South Wales

  • Amendment notes
Medium Neutral Citation: DVB v NSW Trustee and Guardian [2021] NSWCATAD 105
Hearing dates: 7 – 9 September 2020 and by written submissions dated 22 September 2020
Date of orders: 30 March 2021
Decision date: 30 March 2021
Jurisdiction:Administrative and Equal Opportunity Division
Before: A Britton, Principal Member
Decision:

The decision of the NSW Trustee and Guardian to take no further action to have the disputed transfer set aside, made on 11 January 2019 and affirmed on internal review on 12 March 2019, is set aside.

In substitution for that decision the NSW Trustee and Guardian is to commence action in the NSW Supreme Court in accordance with these reasons for decision.

Catchwords:

ADMINISTRATIVE LAW — review of decision of NSW Trustee and Guardian under NSW Trustee and Guardian Act 2009 (NSW), s 62 — decision not to commence legal action to set aside transfer of protected person’s property — whether decision is the correct and preferable decision

EQUITY — unconscionable conduct — special disadvantage — whether unconscientious advantage taken — undue influence

CONTRACTS — unfair contracts — Contracts Review Act 1980 (NSW) – whether the contract was unjust in the circumstances relating to the contract at the time it was made

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Succession Act 2006 (NSW)

Contracts Review Act 1980 (NSW)

Guardianship Act 1987 (NSW)

Legal Profession Uniform Law Application Act 2014 (NSW)

Cases Cited:

Attorney-General v Parnther (1792) 29 ER 632

Atwell v Morgan [2019] WASC 182

Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81

Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66

Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14

Croft v Sanders [2019] NSWCA 303

Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284; [2005] NSWSC 3

Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154

Gibbons v Wright (1954) 91 CLR 423; [1954] HCA 17

Hanna v Raoul [2018] NSWCA 201

Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25

McDonald v Guardianship and Administration Board [1993] 1 VR 521

Mentink v Olsen [2020] NSWCA 182

Murphy v Doman [2003] NSWCA 249

Nicholson v Knaggs [2009] VSC 64

Olsen v Mentink [2019] NSWSC 1299

Olsen v Mentink [2019] NSWSC 1299

Re Estate of Griffith (dec’d); Easter v Griffith (1995) 217 ALR 284

Revie v Druitt [2005] NSWSC 902

Szozda v Szozda [2010] NSWSC 804

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81

Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85

Texts Cited:

Nil

Category:Principal judgment
Parties: Stanislaus Rydzewski (First Applicant)
Andrew Snopkowski (Second Applicant)
NSW Trustee and Guardian (First Respondent)
Janina (Jenny) Rydzewski (Second Respondent)
Krystina Rydzewski (Third Respondent)
Representation:

Counsel:
H Bennett (First and Second Applicants)
M Daniels (Second and…

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Details
AGLC
DVB v NSW Trustee and Guardian [2021] NSWCATAD 105
Case
[2021] NSWCATAD 105
Decision Date

CaseChat Overview and Summary

DVB brought proceedings against the NSW Trustee and Guardian seeking judicial review of its decision not to commence legal action to set aside the transfer of a protected person’s property. The NSW Trustee and Guardian had been appointed as the litigation guardian of the protected person. The dispute hinged on whether the decision not to commence legal action was the correct and preferable decision, and whether the transfer of the property was obtained through unconscionable conduct or undue influence.

The court considered whether the decision was the correct and preferable one under the Trustee and Guardian Act 2009 (NSW). It also assessed if there was unconscionable conduct or undue influence, and whether the contract was unjust under the Contracts Review Act 1980 (NSW). The court found that the evidence supported DVB’s contention that the transfer was obtained through unconscionable conduct and undue influence, and that the contract was unjust.

The court found that the decision of the NSW Trustee and Guardian was not the correct and preferable decision. It set aside the decision and directed the Trustee and Guardian to commence action in the NSW Supreme Court. The court’s reasoning was based on the evidence presented that the transfer was obtained through unconscionable conduct and undue influence, and that the contract was unjust. The court concluded that these factors warranted intervention and the need for legal action to protect the interests of the protected person.

Orders

Orders of the court

The decision of the NSW Trustee and Guardian to take no further action to have the disputed transfer set aside, made on 11 January 2019 and affirmed on internal review on 12 March 2019, is set aside.

In substitution for that decision the NSW Trustee and Guardian is to commence action in the NSW Supreme Court in accordance with these reasons for decision.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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