Efk v NSW Trustee and Guardian

[2020] NSWCATAD 171

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

EFK v NSW Trustee and Guardian [2020] NSWCATAD 171

Hearing dates:

4 February 2020

Date of orders:

3 July 2020

Decision date:

03 July 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Organ, Senior Member

Decision:

Pursuant to s 55 (1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived.

Catchwords:

ADMINISTRATIVE LAW – merits review

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW)

Civil and Administrative Tribunal Act 2013 (NSW)

NSW Trustee and Guardian Act 2009 (NSW)

Cases Cited:

DXG v Public Guardian [2020] NSWCATAD 129

NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15

Category:

Principal judgment

Parties:

EFK (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Solicitors:
Agatha Satala (Applicant)
R Sawtell (NSW Trustee and Guardian) (Respondent)

File Number(s):

2020/00005341

Publication restriction:

The publication 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 2013.

Note: a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

REASONS FOR DECISION

Overview

1. The applicant referred to as EFK, seeks a review of a decision of the NSW Trustee and Guardian (NSWTG) who is the appointed financial manager of EFK’s uncle. EFK’s uncle is referred to as JBC.

2. On 23 May 2018 the Guardianship Division of the Tribunal found JBC was incapable of managing his financial affairs and committed the management of the estate of JBC to the NSWTG.

3. JBC was at the time of the hearing of the current proceedings 97 years old and was residing in an aged care facility. Prior to this he had been living in his unit in the inner west of Sydney (the property).

4. On 22 March 2019 approval was given by NSWTG to enable EFK to buy JBC’s property at the lower end of the market value of $730,000 less agents commission and advertising costs, that is a sale price of $708,000. If EFK was unable to pay the sum the property was to be sold on the open market.

5. Following representations by EFK, the NSWTG amended the decision of 22 March 2019 by agreeing that EFK could purchase the property of JBC for $500,000. The reason given for that decision was because the decision maker felt reassured that it was JBC’s wish for the property to be sold at a significantly discounted price to his nephew EFK.

6. However, EFK’s sister sought an internal review of that decision under s 53 (3) of the Administrative Decisions Review Act, 1997 together with a review of a decision by NSWTG to decline her claim for reimbursement of $45,000 to her for expenses she claimed to have paid from her own funds on JBC’s behalf.

7. On 12 December 2019 the internal reviewer decided to set aside the decision to sell the property for less than market value and to re-instate the decision made on 22 March 2019 which was that EFK be given first opportunity to buy the property at the lower end of the market value. The internal reviewer also set aside the decision declining the claim for reimbursement by EFK’s sister of expenses from the estate and determined that the reimbursement be paid when funds became available from the estate.

8. EFK has applied to the Tribunal for a review of this decision.

9. EFK contends that JBC had intended to sell the property to him for $500,000. He says this position is supported by EFK’s will dated 10 November 2017 which provides that if at the time of his death JBC still owns his property it was to be transferred to EFK upon him paying $500,000. He also says this position is supported by communications between NSWTG and JBC.

10. EFK contends that the funds paid by his sister on behalf of JBC were paid from funds that she had obtained from JBC and deposited to her bank account.

The hearing and subsequent events

11. The hearing took place on 4 February 2020. At the conclusion of the hearing I reserved my decision.

12. On Tuesday 31 March 2020 the Tribunal registry received an e-mail from the Solicitor for NSWTG Ms Rachel Sawtell. Ms Sawtell advises in that e-mail that JBC had unfortunately passed away over the weekend. Ms Sawtell also notes in the e-mail that as a result of the death of JBC the powers of NSWTG to manage the estate of JBC have now ceased.

13. On 6 April 2020 the Tribunal registry forwarded an e-mail to the Solicitor for EFK asking what EFK’s intention was with regard to future conduct of the matter in light of the death of JBC. It was noted that it would be open to EFK to withdraw the application.

14. Ms Satala responded to that e-mail noting her instructions were to request that the Tribunal proceed to deliver a ruling on the review application.

15. On 8 April 2020 in response to the e-mail from Ms Satala, Ms Sawtell on behalf of the NSWTG sent an e-mail to the Tribunal which was copied to Ms Satala. Ms Sawtell says that even if the Tribunal makes a decision in accordance with the above legislation, NSWTG cannot give effect to the decision of the Tribunal as management of the estate of JBC is terminated on his death pursuant to Section 93 of the NSW Trustee and Guardian Act 2009 (NSW).

Consideration

16. Section 93 of the Trustee and Guardian Act 2009 provides

93 Termination on death of person

The management of the estate of a managed person under this Act is terminated on the death of the person.

17. A decision on EFK’s application for administrative review would have no practical purpose or effect as NSWTG management of EFK’s estate is now terminated.

18. I note the recent decision of the Tribunal in DXG v Public Guardian [2020] NSWCATAD 129. In that matter the Tribunal dismissed an application for review of a decision of the Public Guardian after the person under guardianship died while the matter was awaiting hearing. The Guardianship Act 1987 does not specifically provide that the functions of a guardian automatically cease on the death of the person under guardianship. However, the Tribunal found that in the absence of the decision having any power or effect, the correct and preferable decision on the available evidence was to grant the Respondent’s application for dismissal.

19. The Tribunal in DXG referred to the decision in the matter of NSW Department of Premier and Cabinet v Cianfrano [2009] NSWADTAP 15 at [13]. The Tribunal in Cianfrano said

While we regard each of these points as valid, it would not be appropriate in the circumstances of this case to answer a question which is “merely moot, theoretical, abstract, hypothetical and advisory”: Victims Compensation Fund Corporation v District Court of New South Wales and Anor [2002] NSWCA 355 at [27] per Heydon JA (with whom Sheller JA and Einstein J agreed).

20. In accordance with the authorities referred to above I consider there is no utility in the Tribunal determining the application for review. In this regard the application for review is lacking in substance and has by virtue subsequent events, being the death of JBC, become misconceived.

21. I therefore make the following order.

Order

1. Pursuant to s 55(1) (b) of the Civil and Administrative Tribunal Act 2013 the proceedings are dismissed because they are misconceived.

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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: 03 July 2020