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DVB v NSW Trustee and Guardian

DVB v NSW Trustee and Guardian

Case [2021] NSWCATAD 105 30 March 2021

Judicial Review

Unconscionable Conduct

Unjust Enrichment

Administrative Law

Type to search within this case.

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…

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.

Continue reading DVB v NSW Trustee and Guardian

Details

AGLC: DVB v NSW Trustee and Guardian [2021] NSWCATAD 105
Case: [2021] NSWCATAD 105
Decision Date: 30 March 2021

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

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.

Citations

AGLC Citation

DVB v NSW Trustee and Guardian [2021] NSWCATAD 105

Most Recent Citation

NKT [2021] NSWCATGD 31

Cases citing this decision · 3 of 3 shown

Rydzewski v Rydzewski (No 2)
[2024] NSWSC 1074 Para 6

…ad previously decided not to do so. That decision was overturned by the decision of NCAT published on 30 March 2021: DVB v NSW Trustee and Guardian [2021] NSWCATAD 105; see Judgment at [45]. However, the deceased died on 5 April 2021 and consequently the Trustee did not commence proceedings in this Court to set aside…
Rydzewski v Rydzewski
[2024] NSWSC 802 Para 45

…9 September 2020 before Principal Member Britton ( NCAT Review Proceedings ), who delivered judgment on 30 March 2021: DVB v NSW Trustee and Guardian [2021] NSWCATAD 105 ( NCAT Review Judgment ). Principal Member Britton upheld the review application, finding that:…
NKT
[2021] NSWCATGD 31 Para 114

…See DVB v NSW Trustee and Guardian [2021] NSWCATAD 105 for a detailed discussion of some of these legal remedies in a case involving an aged person who had made a large property transfer to a relative.…

View all 3 citing cases →

Cases cited in this decision · 21 of 21 shown

Mentink v Olsen
[2020] NSWCA 182 Para 184

…In M e ntink v Olsen [2020] NSWCA 182, the Court of Appeal (Meagher and Payne JJA) at [2] listed the elements necessary to set aside a transaction on the basis of unconscionable conduct:…
Croft v Sanders
[2019] NSWCA 303 Para 162

…capacity to enter into the subject transaction is to be assessed by reference to the particular transaction and the time it was made: Croft v Sanders [2019] NSWCA 303 at [126], citing Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17 ( Gibbons ).…
Olsen v Mentink
[2019] NSWSC 1299 Para 195

…In Olsen v Mentink [2019] NSWSC 1299, Sackar J at [341] explained the distinction in these terms:…
Attwell v Morgan
[2019] WASC 182 Para 168

…ersonal experience of the elderly person and their cognition at the relevant time: see, for example, Revie v Druitt [2005] NSWSC 902; Atwell v Morgan [2019] WASC 182; Nicholson v Knaggs [2009] VSC 64.…
Hanna v Raoul
[2018] NSWCA 201 Para 182

…ntiously: Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14; Hanna v Raoul [2018] NSWCA 201. As Deane J explained in Commercial Bank of Australia Ltd v Amadio at 474:…
Thorne v Kennedy
[2017] HCA 49 Para 185

…special” in the sense that it involved an inability “to make a judgment as to… her own best interests”: Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [64]; or “to make worthwhile decisions in [her] own interests”: Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 at [124]. Such disadvantage…
Donaghy v The Council of the Law Society of New South Wales
[2013] NSWCA 154 Para 13

…sidered in Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 (Youssef). Citing Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154, the Tribunal (NCAT President, Armstrong J presiding) emphasised at [21] that a review under s 63 is a “review on the merits” and is “not concerned .…
Kakavas v Crown Melbourne Ltd
[2013] HCA 25 Para 185

…85; [2017] HCA 49 at [64]; or “to make worthwhile decisions in [her] own interests”: Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25 at [124]. Such disadvantage may be situational or relational, have been created or exacerbated by an absence of advice or explanation, and may coexist with a “full…
Tobin v Ezekiel; Estate of Lily Ezekiel
[2011] NSWSC 81 Para 159

…with Maria before she made the disputed transfer. In support, they point to the following passage from Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81 at [32]:…
Szozda v Szozda
[2010] NSWSC 804 Para 162

…evant party had the requisite mental capacity: Attorney-General v Parnther (1792) 29 ER 632; Murphy v Doman [2003] NSWCA 249 at [36]; Szozda v Szozda [2010] NSWSC 804 at [20]-[21]. Whether the relevant party had the requisite mental capacity to enter into the subject transaction is to be assessed by reference to th…
Nicholson v Knaggs
[2009] VSC 64 Para 168

…rson and their cognition at the relevant time: see, for example, Revie v Druitt [2005] NSWSC 902; Atwell v Morgan [2019] WASC 182; Nicholson v Knaggs [2009] VSC 64.…
Revie v Druitt
[2005] NSWSC 902 Para 160

…In addition the respondents rely on the comments of Windeyer J in Revie v Druitt [2005] NSWSC 902 at [34]:…
Degiorgio v Dunn (No 2)
[2005] NSWSC 3 Para 149

…In Degiorgio v Dunn (No 2) (2005) 62 NSWLR 284; [2005] NSWSC 3, in the context of considering the meaning of the phrase “without reasonable prospects of success” in a predecessor to the Legal Profession Uniform Law Application Act 2014 (NSW), Barrett J explained that the phrase does not set a “high or inflexible…
Murphy v Doman
[2003] NSWCA 249 Para 162

…ting point is the presumption that the relevant party had the requisite mental capacity: Attorney-General v Parnther (1792) 29 ER 632; Murphy v Doman [2003] NSWCA 249 at [36]; Szozda v Szozda [2010] NSWSC 804 at [20]-[21]. Whether the relevant party had the requisite mental capacity to enter into the subject transa…
Bridgewater v Leahy
[1998] HCA 66 Para 185

…on, and may coexist with a “full understanding” of the transaction: Mentink v Olsen at [3]; Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66 at [115]. A special disadvantage can arise because “illness, ignorance, inexperience, impaired faculties, financial need or other circumstances affect [the person’s] a…
Collector of Customs v Pozzolanic Enterprises Pty Ltd
[1993] FCA 456 Para 14

…o be conducted “without any presumption as to the correctness of the decision”: McDonald v Guardianship and Administration Board [1993] 1 VR 521 at 530; Youssef at [24].…
Commercial Bank of Australia Ltd v Amadio
[1983] HCA 14 Para 182

…se that opportunity unconscientiously: Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14; Hanna v Raoul [2018] NSWCA 201. As Deane J explained in Commercial Bank of Australia Ltd v Amadio at 474:…
Blomley v Ryan
[1956] HCA 81 Para 182

…her party takes advantage of their superior position or bargaining power to use that opportunity unconscientiously: Blomley v Ryan (1956) 99 CLR 362; [1956] HCA 81; Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447; [1983] HCA 14; Hanna v Raoul [2018] NSWCA 201. As Deane J explained in Commercial Bank…
Gibbons v Wright
[1954] HCA 17 Para 162

…to the particular transaction and the time it was made: Croft v Sanders [2019] NSWCA 303 at [126], citing Gibbons v Wright (1954) 91 CLR 423 at 438; [1954] HCA 17 ( Gibbons ).…
Youssef v NSW Legal Services Commissioner
[2020] NSWCATOD 85 Para 13

…The nature of a review under s 63 of the Administrative Decisions Review Act was recently considered in Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 (Youssef). Citing Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154, the Tribunal (NCAT President, Armstrong J presiding) emph…
Attorney-General v Parnther
(1792) 29 ER 632 Para 162

…making that assessment, the starting point is the presumption that the relevant party had the requisite mental capacity: Attorney-General v Parnther (1792) 29 ER 632; Murphy v Doman [2003] NSWCA 249 at [36]; Szozda v Szozda [2010] NSWSC 804 at [20]-[21]. Whether the relevant party had the requisite mental capacity…

Legislation cited in this decision · 6

NSW Trustee and Guardian Act 2009 (NSW)
62 2 mentions (from Para 10)
Administrative Decisions Review Act 1997 (NSW)
1 mention (from Para 12)
Contracts Review Act 1980 (NSW)
1 mention (from Para 5)
Guardianship Act 1987 (NSW)
1 mention (from Para 10)
Legal Profession Uniform Law Application Act 2014 (Vic)
1 mention (from Para 149)
Succession Act 2006 (NSW)
1 mention (from Para 2)

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…