FDK v NSW Trustee and Guardian
[2021] NSWCATAD 383
•24 December 2021
Civil and Administrative Tribunal
New South Wales
- Amendment notes
Medium Neutral Citation: FDK v NSW Trustee and Guardian [2021] NSWCATAD 383 Hearing dates: 20 December 2021 Date of orders: 21 December 2021 Decision date: 24 December 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: T Simon, Principal Member Decision: (1) The Tribunal affirms the respondent’s decision of 4 June 2021 to decline reimbursement for motor vehicle expenses.
Catchwords: ADMINISTRATIVE LAW – review under section 62 NSW Trustee and Guardian Act 2009 (NSW) – Trustee and Guardian - interests and welfare of protected person – whether to refund expenses related to a motor vehicle.
Legislation Cited: Administrative Decisions Review Act 1997 (NSW)
Civil and Administrative Tribunal Act 2014 (NSW)
NSW Trustee and Guardian Act 2009
NSW Trustee and Guardian Regulation 2017
Cases Cited: Nil
Category: Principal judgment Parties: FDK (Applicant)
NSW Trustee and Guardian (Respondent)Representation: Solicitors:
Applicant (Self-Represented)
R Sawtell, NSW Trustee and Guardian (Respondent)
File Number(s): 2021/00289710 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act, (2013) the publication of the applicant’s name is prohibited.
Reasons for Decsion
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On 12 October 2021 the applicant made an application seeking review of a decision made by the respondent declining a request for reimbursement for $10,515.95 for car repairs and maintenance. By the time of hearing the applicant was seeking an amount of $18,368.58 for the motor vehicle expenses.
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The respondent, the NSW Trustee and Guardian, currently manage the financial affairs of the applicant’s mother (the mother). The Guardianship Division of the Tribunal initially made an order on 18 December 2015 appointing the respondent as financial manager. The Tribunal subsequently made orders on 24 April 2017 appointing the mother’s granddaughter as financial manager. The Tribunal made further orders on 7 March 2019 re-appointing the respondent as financial manager.
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The vehicle for which the applicant is now seeking the costs of repairs had initially been registered in the applicant’s mother’s name. The applicant transferred registration of the car into her name on 29 September 2018. The applicant claims that she was advised by Mr Leigh Avery, on behalf of the respondent, to transfer the vehicle into her name. The respondent disputes that there was ever any such authorisation.
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On 4 June 2021 the respondent made the decision to decline to reimburse the applicant for motor vehicle related expenses. The applicant sought an Internal Review of Decision on 18 August 2021. The Internal Review of Decision, dated 31 August 2021, affirmed the decision not to reimburse the applicant for motor vehicle expenses. The Internal Review of Decision stated that the decision would be reconsidered if the applicant provided evidence that she was recommended by NSW Trustee and Guardian to transfer the car into her own name.
Jurisdiction
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I am satisfied that the Tribunal has jurisdiction to review decisions pursuant to s 30 of the Civil and Administrative Act 2013 (NCAT Act) and ss 6, 7 and 9 of the Administrative Decisions Review Act 1997 (ADR Act).
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Pursuant to s 62 of the NSW Trustee and Guardian Act 2009 (‘NSWTG Act’) an affected person may apply to Tribunal for an administrative review under the ADR Act of a decision of the NSW Trustee that-
(a) is made in connection with the exercise of the NSW Trustee's functions under this Division, and
(b) is of a class of decision prescribed by the regulations for the purposes of this section.
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I am satisfied that the applicant, is the daughter of an affected person within the meaning of section 62(2) of the NSWTG Act and that the decision made by the respondent was in connection with it functions in the management of the estates of a person subject to financial management and is reviewable by the Tribunal (reg 45 of the NSW Trustee and Guardian Regulation 2017).
Consideration
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The respondent produced documents pursuant to Section 58 of the ADR ACT (s 58 documents). The parties also relied on the following:
The applicant relied on a bundle of documents comprising of 47 pages. Those documents include the invoices for the cost of the repairs being claimed.
The respondent relied on submissions and documents provided to the Tribunal 16 December 2021.
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Both parties made oral submissions at the hearing. The respondent had provided an email from Mr Leigh Avery, a Senior Client Service Officer, in relation to his recollection of any conversations in relation to transfer of the vehicle. Mr Avery appeared at the hearing and was sworn in and adopted the email as a statement. He was cross examined by the applicant in relation to his evidence.
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When considering a review, the Tribunal is required by s 63(1) of the ADR Act to determine the review as follows:
(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
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In the s 58 documents, the respondent provided two file notes related to a decision it made on 24 September 2018 to allow the then financial manager, the granddaughter, to dispose of the mother’s 1995 Ford Fairmont.
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In effect the applicant relies gives two reasons as why the respondent should pay the vehicle related expenses. Firstly, she made submissions that she transferred the car into her name on the instruction of Mr Avery of NSW Trustee and Guardian. Secondly, the applicant submitted that pursuant to s59 of the NSWTG Act, the respondent has a responsibility to pay the debts of her mother as she was in need of the vehicle.
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Having considered the evidence and for the reasons that follow, I am satisfied that the decision to decline reimbursement for motor vehicle related expenses is the correct and preferable decision.
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The applicant stated that Mr Avery telephoned her to inform her to register the car in her name. She stated that her mother had been very upset with the possibility of the car being sold for scrap metal because she had great emotional attachment to the car as it had been a gift to her mother from her husband.
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Mr Avery is of the view that such a conversation never occurred as he would have made a file note of the conversation and would have requested the applicant to put a request to transfer the car into her own name in writing. He stated there was no decision made by the NSW Trustee and Guardian to transfer the car into the name of the applicant and the only decision made by the respondent was to dispose of the vehicle.
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Having considered the evidence I am not satisfied that Mr Avery informed the applicant to transfer the vehicle into her name. The respondent was not the financial manager at the time the vehicle was transferred and that Mr Avery would have given such advice is inconsistent with the file notes from provided by him from the time.
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In a file note provided with the s 58 documents (which the can be inferred from the index, as dated 21 September 2018), there is some suggestion that the then financial manager, the granddaughter, was considering whether to sell the vehicle for scrap or someone may repair and register it.
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However, in a subsequent file note provided by Mr Avery, dated 24 September 2018, Mr Avery recorded the following:
Manager phoned and advised:
XX is chasing up on the approval to sell a motor vehicle. The motor vehicle is a scrap metal not worth even $50.
It has been sitting in front of the clients property for over 20 years. She want approval to basically get rid of it, outside of managed persons property for the last 20 years.
DECISION
The manager is authorised to dispose of the motor vehicle in the name of the managed person parked outside the managed person home for the past 20 years and said to have no monetary value. A record of the disposal should be advised to RTA and placed with the managed person records."
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Based on those file notes and the evidence of Mr Avery, I am not satisfied that Mr Avery advised the applicant to transfer the vehicle to her name and I accept the evidence of Mr Avery that had of done so he would have made a file note and sought confirmation.
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The applicant also made submissions that the financial manager should have ensured that her mother had a car. She stated that the car was being used to transport her mother’s large mobility items. The applicant also made submission that it was her mother’s wishes to keep the car, as it had sentimental value and for those reasons the respondent should pay what is a debt of the estate. In that regard she relied on s59 of the NSWTG Act which relevantly states the following:
The NSW Trustee may apply money of the estate of a managed person towards any one or more of the following purposes--
(a) the payment of the debts and engagements of the person and the repayment of expenses chargeable to the estate of the person,
….
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The applicant stated that since registering the car in her name she has made the necessary repairs to the car as it is a very strong vehicle to tow a trailer which can transport her mother’s mobility items. She stated that the vehicle has been used only for her mother’s needs, especially to tow the large mobility items.
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I am not satisfied that the monies are a debt of the estate. It was not until 1 April 2021 that the applicant first made sought the reimbursement of the costs for the vehicle. Those are costs which had been incurred since 2018. That delay is not consistent with the monies being used as an ongoing expense for the use of the mothers transportation needs. No explanation was provided for the delay. No prior request for reimbursement for motor vehicle expenses had been made by the applicant. The respondent provided a search from cars guide which indicated that as at November 2021, Cars Guide range for the value of a 1995 Ford Fairmont ranged between $2,200.00 for a trim level sedan to $6,380.00 for a top range sedan. Between the period of 29 September 2018 and 30 September 2021, the applicant spent over $10,000.00 on repairs to the car. I accept that the respondent did not consent to the vehicle being transferred into the applicants name for the use of the mother. On reappointment as financial manager the respondent contacted RMS and it was verified there were no registered vehicles in the mother’s name. The applicant requested a new car be purchased for her mother in March 2020 and a 2021 Tiguan Allspace was purchased for the mother from Volkswagon for $70,906.00 on 29 September 2021 based on a report dated 21 September 2021 of occupational therapist Fiona Tait. Besides the assertions of the applicant, there is no corroborating evidence before me that the applicant has used the car solely for the purpose of the mother needs. Further, it is unclear why, if the vehicle was being used for the sole purpose of the mother’s needs, it would have be transferred to the daughter.
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Having considered the evidence in its totality I am satisfied that the decision to decline reimbursement to the applicant for the motor vehicle related expenses is the correct and preferable decision on behalf of the applicant.
Orders
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The Tribunal affirms the respondent’s decision of 4 June 2021 to decline reimbursement for motor vehicle expenses.
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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
Amendments
20 January 2022 - Paragraph [18] amended name
Decision last updated: 20 January 2022
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