FNL v NSW Trustee and Guardian

[2023] NSWCATAD 46

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FNL v NSW Trustee and Guardian [2023] NSWCATAD 46

Hearing dates:

06 December 2022

Date of orders:

06 March 2023

Decision date:

06 March 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

J S Currie, Senior Member

Decision:

(1)   The decision of NSW Trustee and Guardian is affirmed.

(2)   The time for filing the Application is extended to 28 September 2022.

Catchwords:

ADMINISTRATIVE LAW – ground of review other than procedural fairness – irrelevant and relevant considerations – review of decision made under NSW Trustee and Guardian Act 2009 – interests and welfare of protected person – decision made “in principle” to approve expenditure from protected estate of a maximum amount for purchase of residence for the protected person – whether a “decision” under Administrative Decisions Review Act 1997, section 6 – whether made in compliance with general principles in NSW Trustee and Guardian Act 2009, section 39 – whether decision correct and preferable – meaning of “preferable”

Legislation Cited:

Administrative Decisions Review Act 1997 (NSW), ss 6(1), 7, 9, 55, 58, 63, 65

Civil and Administrative Tribunal Act 2013 (NSW), s 41

Civil and Administrative Tribunal Rules 2014 (NSW), rr 24(3), 24(4)(a)

Guardianship Act 1987 (NSW), ss 4, 25M(1)

NSW Trustee and Guardian Act 2009 (NSW) ss 39, 70

Cases Cited:

DCA v Public Guardian [2017] NSWCATAD 364

Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60; [1979] FCA 39

DYH v Public Guardian [2021] NSWCATAD 136

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

Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31

WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22

YG and GG v Minister for Community Services [2002] NSWCA 247

ZWA v ZWB [2022] NSWCATAP 113

Category:

Principal judgment

Parties:

FNL (Applicant)
NSW Trustee and Guardian (Respondent)

Representation:

Solicitors:
Applicant (self-represented)
NSW Trustee and Guardian (Respondent)

File Number(s):

2022/00289440

Publication restriction:

The name of the Applicant has been anonymised and publication of that name is prohibited under section 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW). Note: The name of a person includes a reference to any information, picture or other material that identifies them or is likely to lead to identification of them.

reasons for decision

What is this matter about?

1. Ms FNL, whose estate has been committed to management by NSW Trustee and Guardian (NSW Trustee), seeks administrative review of a decision by NSW Trustee made on 20 June 2022.

2. That decision was to give Ms FNL what NSW Trustee has described as “approval in principle” to the expenditure of up to $680,000 from Ms FNL’s estate to cover the purchase of a suitable residential property for her, and all associated costs.

3. NSW Trustee asserts that this was not a decision to purchase any particular property and that no such decision has yet been made. It says that the approval in principle was an attempt to provide some initial guide to Ms FNL as to the upper limit of expenditure from her managed estate for the purchase of suitable and adequate accommodation for her, in order to assist her to locate a suitable property for such a purchase.

4. Ms FNL says that the allowance of $680,000 as a maximum amount does not allow her to locate a suitable home unit for purchase having the features she needs, including facility of access and proximity of friends and supporters, in the area of Sydney in which she wishes to live and that she would be forced to live elsewhere without those features or that support. She says that for those reasons the decision does not meet her needs or preserve and protect her welfare and interests.

5. On that basis she says that the decision was not the correct or preferable one.

6. For the reasons which follow, I have decided that the NSW Trustee’s decision was the correct and preferable one and that accordingly the NSW Trustee’s decision must be affirmed.

Uncontested facts

7. The following facts, which may add to an appreciation of the background to the matter or are otherwise relevant, appear to be uncontested.

1. Ms FNL is aged 68 years.

2. She was subject to a guardianship order, between March 2013 and March 2015, but is no longer under guardianship.

3. Medical evidence accepted by the Guardianship Division of the Tribunal at a hearing on 7 September 2022 indicates that although Ms FNL has a diagnosis of bipolar disorder, her current mental health is stable and has been stable since 2019. She has been prescribed a low dose of Seroquel and she is compliant with that course of medication and appears to be self- sufficient.

4. Ms FNL’s estate has been managed under a financial management order since December 2012, that order having most recently been confirmed by the Guardianship Division’s hearing on 7 September 2022; that is, two months prior to my hearing her present application.

5. Ms FNL applied herself for that most recent review of her financial management order. In her application, she sought revocation of the order on the ground that she had regained the capability to manage her own affairs.

6. Ms FNL was unsuccessful. That was her second unsuccessful attempt to obtain revocation of the order based on the “regained capability” ground, the previous application having been made in April 2019 and heard in September 2019.

7. Although Ms FNL disputes many of the conclusions reached by the Guardianship Division on 7 September 2022 as to her capability to manage her own affairs, the fact that those conclusions were reached is not contested in the present proceedings.

8. On 7 September 2022, the Guardianship Division concluded that Ms FNL had not regained the capacity to manage her own affairs and provided detailed grounds for that conclusion. These included findings that she lacked insight as to the nature of her condition and as to the risks which she faced. It based those conclusions on findings set out at [69] of its reasons for decision, including:

“(3) [Ms FNL’s stated view] that the Seroquel [prescribed for her] is for sleep and is of “no consequence”; [which the Tribunal effectively concluded to be indicative of a lack of insight];

(4) [Ms FNL’s] lack of insight … demonstrated by her ... attributing the financial management order to a “single mistake … ;

(5) [Ms FNL’s evidence relating to] incurring debt on her Bank of Melbourne credit card [being] consistent with ... her lack of insight and understanding of the need for the order … ; [and]

(6) … her insistence that there is no risk to her and that the [Bank of Melbourne] debt should not be considered as a liability … [being] indicative of her inability to accept advice.”

9. Between December 2012 and 19 September 2019, management of Ms FNL’s estate was committed jointly to her brother and her son. At the hearing on 19 September 2019 the Tribunal accepted that neither of them sought re-appointment and, as no other private manager was available, the Tribunal committed management of the estate to NSW Trustee under section 25M(1) of the Guardianship Act1987 (NSW).

10. NSW Trustee has managed Ms FNL’s estate since 19 September 2019.

11. Ms FNL has previously been employed as what she describes as “a company accountant”, although I was not made aware of any professional accounting qualifications which she holds. Over recent months, she has expressed a wish to return to work part-time.

12. NSW Trustee’s decision of 20 June 2022, which is the decision under review, was to give what it describes as “approval in principle” to the expenditure of up to $680,000 from Ms FNL’s estate for the purpose of her purchase of a suitable residential property, plus associated expenses.

13. On 21 June 2022, Ms FNL sought an internal review of that decision (Internal Review). The outcome of the Internal Review was contained in a letter from the NSW Trustee to Ms FNL dated 11 July 2022, but it appears that for some reason the letter was not sent to her until a month later.

14. On 11 August 2022, Ms FNL was notified by email of the outcome of the Internal Review, which was that the decision under review was affirmed.

15. Ms FNL then commenced these proceedings by lodging an Administrative Review Application Form. That was received at the Registry on 28 September 2022.

Jurisdiction

8. I am satisfied that the Tribunal has jurisdiction to hear and determine the Application by operation of section 9 of the Administrative Decisions Review Act 1997 (NSW) (“the ADR Act”) and section 70 of the NSW Trustee and Guardian Act 2009 (NSW) (“the TAG Act”).

The decision under review

9. As noted above, the decision under review is the decision by NSW Trustee on 20 June 2022 to give what the Trustee describes as “approval in principle” to the expenditure of up to $680,000 from Ms FNL’s estate for the purpose of her purchase of a suitable residential property, plus associated expenses.

Preliminary issues

Application filed out of time

10. Ms FNL lodged an objection to the NSW Trustee’s decision on 21 June 2022. Her objection was disallowed on 11 July 2022 but for some unexplained reason she was not notified of that disallowance until 11 August 2022. On 28 September 2022, she commenced these proceedings by lodging her Application with the Tribunal’s registry.

11. The effect of section 55(2) of the ADR Act and the term “procedural rules” as outlined in rules 24(3) and 24(4)(a) of the Civil and Administrative Tribunal Rules 2014, when read together, is that Ms FNL ought to have filed her Application within 28 days of being notified of the result of the internal review; that is, on or before 8 September 2022. The filing was therefore 20 days late.

12. However, section 41 of the Civil and Administrative Tribunal Act 2013 (“the NCAT Act”) allows the Tribunal to grant an extension of the period for doing anything under legislation which the Tribunal has jurisdiction, despite anything to the contrary in that legislation.

13. I am inclined to extend the time under section 41 in this case, because NSW Trustee has indicated that it does not object to the application being filed out of time and there seems to be no prospect of demonstrable prejudice to the Trustee or to the proceedings generally or to my process of determining the matter by reason of such an extension being granted.

14. I therefore order that under section 41 of the NCAT Act the time for lodgement of the application is extended to 28 September 2022.

Does the “in principle” nature of the decision mean it is not reviewable?

15. NSW Trustee does not contest that notwithstanding the nature of its decision on 20 June 2022, being to give what the Trustee describes as “approval in principle” to the expenditure from the protected estate, that was nevertheless a “decision” for the purposes of section 6 and an “administratively reviewable decision” for the purposes of section 7 of the ADR Act, which is thereby reviewable by the Tribunal by operation of section 9 and Part 3 of Chapter 3 of the ADR Act, and in particular by reference to Division 3 of that Part.

16. That concession is properly made. The definition of “decision” in section 6(1) of the ADR Act is a broad one, expressed inclusively. For example, it provides that a “decision” for the purposes of the Act will include:

6 Meaning of “decision”

(1) ...

“(a) …suspending … [a] determination; [and]

(b) …suspending … [an] approval, consent or permission, …”

17. Here, the evidence and context make it clear that the NSW Trustee’s “in principle” decision was an interim one, so that a final decision to approve expenditure of a particular amount for the purchase by the protected estate of a particular property was effectively suspended until a suitable property was located and in the meantime a decision was made to approve in principle an upper limit of funds from that estate which might be considered available for that purpose.

18. On that basis the decision, albeit an interim one, is one which is reviewable by this Tribunal.

Statutory provisions as to the role of the Tribunal and available orders

19. Section 63(1) of the ADR Act prescribes the role of the Tribunal in determining an application such as this. Its role 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.”

20. Section 63(2) allows the Tribunal, for the purpose of making its decision, to exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.

21. The effect of these two subsections is often described as the Tribunal being required to “stand in the shoes” of the administrator who made the decision. As is the way with these general tags, that is not entirely accurate. Certainly, I must conduct this review without any presumption as to the correctness of the decision: McDonald v Guardianship and Administration Board [1993] 1 VR 521 at 529. I am required to decide what the correct and preferable decision is having regard to the material that is before me at this hearing. It is clear that that may include material which postdates the making of the decision: YG and GG v Minister for Community Services [2002] NSWCA 247 (“YG”) at [25]; Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60 (“Drake”) at 77; [1979] FCA 39.

22. It is also clear that the Tribunal’s determination must be carried out at the time the relevant issues come to be decided by it, and not as at the time at which that decision under review itself was made: Drake at 68 (Bowen CJ and Deane J), and numerous subsequent authorities, including Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [35]; [2008] HCA 31 (“Shi”).

23. Section 63(3) of the ADR Act sets out the range of possible outcomes of an administrative review by this Tribunal. Having determined an application, the Tribunal may decide:

1. to affirm the decision; or

2. to vary it; or

3. to set the decision aside and make a decision in substitution for it; or

4. to set the decision aside and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations made by the Tribunal.

24. Additionally, by operation of s 65(1) of the ADR Act, at any stage of proceedings the Tribunal may decide to remit the decision to the administrator who made it for reconsideration of the decision by the administrator.

Relevant statutory provisions: general principles in section 39 of the TAG Act

25. A statutory provision which is of significance and importance when reviewing a decision of the Trustee is section 39 of the TAG Act. It sets out seven principles (the section 39 principles) and imposes a duty on everyone exercising functions under Chapter 4 of that Act in respect of protected persons to observe those principles. I set out the terms of the section below at [45], where I discuss the application of the section 39 principles to the present facts.

26. In reserving my decision at the conclusion of the hearing on 6 December 2022, I gave directions to each party as to any further submissions they wished to make concerning the consideration given by NSW Trustee to the section 39 principles in making the decision under review. Each party made submissions in accordance with my directions. I discuss those submissions below.

The parties’ documentation and submissions

27. Ms FNL provided substantial documentation, commencing with the Application, which attached a short letter of submissions and a copy of some relevant documentation and correspondence between the parties. She also provided the following:

1. Submissions dated 6 October 2022 attaching budgets and forecasts, the content of the covering letter of which appears to be repeated in a covering email dated 10 October 2022, with attachments.

2. Submissions of three pages contained in a letter dated 3 November 2022, attaching a further 38 pages of documentation.

3. A bundle of supporting documents attached to a letter dated 14 November 2022.

4. Further submissions dated 1 December 2022 with further substantial attachments.

5. Further written submissions dated 9 January 2023, filed in compliance with my directions of 6 December 2022 and in response to the NSW Trustee’s written submissions made in compliance with those directions. My directions were to the effect that those written submissions and any response by Ms FNL should deal only with the issue of NSW Trustee’s consideration of the principles set out in section 39 of the TAG Act. Notwithstanding that, Ms FNL’s submissions of 9 January 2023, whilst addressing the section 39 issue, went on to make submissions generally in support of her case. However, NSW Trustee did not indicate any objection to that and on that basis I considered all matters raised in Ms FNL’s submissions of 9 January 2023.

6. Finally, in the course of the hearing Ms FNL handed up a bundle comprising five spreadsheets comprising her calculations in tabular form of the forecast balance of her funds after a hypothetical purchase of a home unit for a range of purchase prices. As there was no objection by the NSW Trustee to my considering those further calculations, I admitted the bundle as Exhibit A1.

28. NSW Trustee provided initial written submissions, further written submissions as to the section 39 issue in response to my directions of 6 December 2022, and a bundle of documents provided in compliance with section 58 of the ADR Act (the section 58 bundle).

29. At the hearing each party made oral submissions.

30. I considered all the documentary material and the parties’ submissions.

The parties’ respective cases

31. Ms FNL’s case, as I understand it, is that the NSW Trustee’s decision to provide approval in principle to expenditure of only $680,000 from her protected estate for the purchase of a suitable home unit (including all costs of the purchase) was not the correct or preferable decision because:

1. That would not enable her to purchase a unit which met her needs, in particular a unit which catered for her lack of mobility and family support, which had 2-bedrooms to enable a boarder or family member to stay with her and which was located in the Ryde area where she had access to family, her church and other established available avenues of support. Her case was that those matters demonstrated that the NSW Trustee, in making the decision under review, had not acted in compliance with the TAG Act by reason of its failure to give due consideration to the section 39 principles; and

2. In any case, the NSW Trustee’s projections as to the effect on her estate of the projected purchase were incorrect because, amongst other reasons, the projections and conclusions failed to allow for the possibility of her resuming employment, the projections had included inapplicable items, and the NSW Trustee’s management fee was excessive.

32. NSW Trustee’s case in response is, in summary, that the decision was the correct and preferable decision in all the circumstances because:

1. Due consideration had been given by it to the section 39 principles.

2. The preliminary projections made by it with the assistance of the NSW Trustee’s Financial Planning Unit (the FP Unit) were reliable, but the projections made by Ms FNL were unreliable because she had failed to take into account or had miscalculated many important elements. These are set out at par 18 of the NSW Trustee’s submissions of 30 November 2022 and I deal with this aspect further below at [52].

3. The fact that the decision was made “in principle” should be taken into account. The decision was made as a preliminary step, in order to give Ms FNL some guidance as to available funding, to enable her to locate potential properties for purchase, so that a later and final approval could be given to the purchase of a specific property.

The real issues

33. A determination as to whether the decision under review was the correct and preferable one rests on resolution of the following issues.

33. Firstly, whether that decision was made in accordance with the principles set out in section 39 of the TAG Act; and so was and is the correct decision.

34. Secondly, even if I find that the NSW Trustee’s application of section 39 produced a decision which was and remains correct, that leaves the question of whether it also was and remains the preferable decision.

35. It seems to me that certain situations give rise to the possibility that more than one decision may be a “correct” one; that is, one made in compliance with applicable law. In those situations, the very existence of more than one “correct” decision makes necessary a further enquiry as to which decision was the preferable one.

36. That seems to have been an approach recognised by the High Court of Australia in Shi, as cited above at [22]. The meaning of the term “preferable” in relation to an administrative decision was addressed in the judgment of Justice Kirby in Shi at [140], where His Honour described “preferable” as a term which:

“… is apt to refer to a decision which involves discretionary considerations.”

38. Section 39 of the TAG Act is expressed to apply to decisions of anyone exercising functions under Chapter 4 of that Act. As the context of the provisions in that Chapter makes clear, much if not most of the decision-making undertaken in exercise of a Chapter 4 function will involve discretionary considerations; for example, decision-making in exercise of section 56 (the general management function), section 58 (the execution of documents for managed persons), and particularly in section 59 (application of the moneys of managed estates) which is clearly directly pertinent to the present facts.

39. The discretionary nature of decision-making in a similar context has been recognised in relation to decisions to which section 4 of the Guardianship Act applies: see, for example, WL v NSW Trustee and Guardian (External) [2011] NSWADTAP 22 (“WL”) at [71], [76]; DYH v Public Guardian [2021] NSWCATAD 136 (“DYH”) at [82]-[83]. The section 4 principles are in almost identical terms to those of section 39 of the TAG Act and the nature of the guardianship decisions to which section 4 applies is analogous to decisions made in the context of management of a protected estate, to which section 39 applies.

40. So, the real issues here are in my view twofold, namely:

1. Whether the decision was the correct decision, in that it was made in accordance with the section 39 principles and on the basis of reliable projections; and

2. Whether the decision was also the preferable decision, in that it resulted from a proper exercise by the Trustee of discretionary considerations.

41. It is relevant to determination of both issues that the decision under review here was expressed to be an “in principle” decision, made with the purpose of providing a preliminary guide only, in order to assist Ms FNL to locate potential properties so that a later final approval could be considered by NSW Trustee in relation to the purchase of a specific property for her.

Consideration

The correct decision: proper application of section 39 principles?

42. For the reasons which follow, I find that in making the decision under review NSW Trustee properly applied the section 39 principles.

43. I commence by noting that, at the hearing, the issue of whether NSW Trustee had observed those principles was touched upon only briefly in the presentation of NSW Trustee’s case and the issue was introduced at my suggestion. The issue was not addressed in NSW Trustee’s initial written submissions of 30 November 2022. Ms FNL, who is not legally qualified, did not raise the issue at the hearing.

44. Because the issue had arisen in that way and given the importance of the section 39 principles, I made directions at the conclusion of the hearing to the effect that each party could address by further written submissions the issue of whether the NSW Trustee had properly applied the section 39 principles in making the decision under review.

45. Section 39 of the TAG Act is in the following terms:

“39   General principles applicable to Chapter

It is the duty of everyone exercising functions under this Chapter with respect to protected persons or patients to observe the following principles—

(a)  the welfare and interests of such persons should be given paramount consideration,

(b)  the freedom of decision and freedom of action of such persons should be restricted as little as possible,

(c)  such persons should be encouraged, as far as possible, to live a normal life in the community,

(d)  the views of such persons in relation to the exercise of those functions should be taken into consideration,

(e)  the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised,

(f)  such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs,

(g)  such persons should be protected from neglect, abuse and exploitation.”

46. Ms FNL is and was at all relevant times a protected person for the purposes of the section.

47. Observations relating to the application of the section 39 principles emerge from the leading cases, including WL and DYH which are discussed above at [39], but also from cases such as ZWA v ZWB [2022] NSWCATAP 113 at [51]-[55] and DCA v Public Guardian [2017] NSWCATAD 364 (“DCA”) at [56], each of which involved application of section 4 of the Guardianship Act. As discussed above, the section 4 and section 39 principles are in almost identical terms and are analogous.

48. The following principles which emerge from those cases are relevant.

1. A decision-maker is bound to observe any relevant principle in the section: WL at [75]

2. The decision-maker may demonstrate their observance of the relevant principles by referring to them expressly or by providing an explanation of the decision which demonstrates that all relevant principles have been observed: WL at [75]. The Appeal Panel in WL applied that as a standard of explanation which might be given in reasons for decision, but in my view the standard must apply equally to an explanation of a reviewable decision contained in written submissions lodged on behalf of the decision-maker in response to a direction from the Tribunal, as occurred here. Such an approach is conformable with the Tribunal “standing in the shoes of the decision-maker” (see [21] above).

3. The section 39 principles, in common with those in section 4 of the Guardianship Act, are not stated in absolute terms. Phrases within the statement of principles such as “as little as possible” and “as far as possible” make it clear that where a discretion exists the decision-maker is not bound to make a particular decision: WL at [76].

4. The section only requires that the decision-maker “observe” the principles. Satisfaction or observance of a particular section 39 principle does not automatically produce a particular decision: WL at [76]; DYH at [82].

5. Nor does it follow from observance of a particular principle that a particular decision is the only possible correct decision: DYH at [82].

6. Any decision reached on the basis of the application of any one or more of the principles in paragraphs (b) to (g) of the section cannot be considered as the correct decision unless it satisfies what was colourfully described in DYH as “the final filter” of paragraph (a). As was said in that decision at [84]:

“It cannot be the correct decision unless it is made as the result of the decision-maker having given paramount consideration to the welfare and interests of the person.”

49. Although it might well have been preferable for the NSW Trustee to have addressed the section 39 principles expressly in its reasons for the review decision, so that the extent of its compliance with those principles might have been readily apparent at an early stage, failure to do that does not mean that the principles were ignored or given less than appropriate weight. I am satisfied that the reasons for the review decision, read with the NSW Trustee’s written submissions, do demonstrate NSW Trustee’s compliance with the duty imposed by section 39 of the TAG Act to a degree consistent with the nature of the decision under review.

50. In particular, I accept that NSW Trustee in making the decision under review passed the so-called “final filter” test prescribed by paragraph (a) of the section, by giving paramount consideration to Ms FNL’s welfare and interests. That conclusion is supported by the following extract from par 7 of the NSW Trustee’s submissions dated 20 December 2022:

“7. … The decision balances the wishes of the applicant to purchase a property with the realities of their financial circumstances.

The decision allows the applicant the cultural status of homeownership, will provide a space where family can visit, allows them to remain living in the community, acknowledges their views and provides freedom of choice in that the applicant can both review their budget to see if a higher purchase price can be obtained and can locate a property to purchase within budget.

The decision will ensure that the applicant has sufficient monies to meet ongoing property expenses and maintain her current standard of living without running out of monies which would require premature sale of the property.

It is not in the best interests of the applicant to overextend their budget to the point that basic necessities such as food and water cannot be met or the applicant suffers health complications from the stress of living on a severely restricted budget.”

51. To the extent that it might be suggested that I should not take these submissions into account because they were made ‘after the event’, that is after the making of the decision under review, I reject that. As explained above, in making my decision I “stand in the shoes” of the NSW Trustee. It is clear that I may consider material which postdates the making of the decision under review: YG; Drake. Furthermore, my obligation is to determine the matter at the time at which the relevant issues come to be decided by the Tribunal and not as at the time at which that decision under review itself was made: Drake at 68 (Bowen CJ and Deane J).

The correct decision: reliable projections?

52. For the reasons which follow, I also find that the financial projections provided by the NSW Trustee’s Financial Planning Unit were reliable. To the extent that they conflict with Ms FNL’s projections, I prefer the former because of the expertise and experience of the FP Unit, the detailed nature of its report and on the deficiencies in Ms FNL’s own projections and conclusions referred to below. The relevant staff members of the FP Unit appear to have taken into account the pertinent facts and Ms FNL’s own submissions, calculations and forecasts.

53. It is not necessary for me to find the FP Unit’s projections to have been perfect, in the sense of being without blemish; that is, accurate in every particular including in their forecasting of future developments. That would be an unachievable and unrealistic standard. The projections are reliable for the purposes of this administrative review in that that they were completed without demonstrated substantial omission of relevant factors or substantial miscalculation.

54. In deciding this issue, I take into account that at least some of the deficiencies asserted by the NSW Trustee in Ms FNL’s competing projections and conclusions (see [42], [43]) appear to be well-founded. They include:

1. Ms FNL’s assertion that she is, or soon will be, in a position to resume employment and in fact has been offered a job. However, she provided no substantiation details as to basic elements of the employment she has been offered, such as the identity of the employer, the proposed date of commencement and the likely term of employment, or as to the location, hours or proposed salary involved. Additionally, in an earlier email of 8 September 2022 (p 171 of the section 58 bundle) and in her submissions in reply at the hearing, I understood Ms FNL to assert that she was currently experiencing increasing stress, largely due to these proceedings, and that that inhibited her from re-commencing employment.

2. Her estimate of the amount to be allowed for insurance premiums, which she claims to be $200 or less per annum. This appears inadequate and seems to have excluded the cost of insurance cover for fixtures and fittings which are not covered by strata insurance.

3. Her unsubstantiated assertion that her substantial credit card debt will be reduced by future repayments by family members.

4. Her continued assertion that she needs a two-bedroom unit, one bedroom of which could be let for appropriate rent. She repeated this suggestion at the hearing when she told me that the tenant could be a family member or friend and that could yield $200-$300 per week. Any such letting proposal would, of course, require the express consent of NSW Trustee as manager of the estate. On 30 March 2022, Ms FNL was advised that NSW Trustee would not approve letting of a room to a boarder (p 84 of the section 55 bundle) and I am unaware of any current indication of a change to the NSW Trustee’s position.

5. An apparent absence of allowance by her for the full amount of NSW Trustee’s fees, which she appears to dispute. However, the fees appear to have been charged and future fees calculated in accordance with the fees schedules applicable to the NSW Trustee acting as manager of a protected estate and I have not been made aware of any proper basis on which they could be challenged.

55. I also take into account that the decision under review was a preliminary one, having been expressed as being a decision “in principle”: see above at [15]-[18], [40].

The preferable decision: proper exercise of discretionary considerations?

56. As discussed above, I need to decide whether the NSW Trustee’s decision was also the preferable decision, in that it resulted from a proper exercise by NSW Trustee of discretionary considerations.

57. I find for the reasons discussed in detail under the previous heading that the NSW Trustee’s decision under review was properly reached and constituted a proper exercise by it of the relevant discretions, in particular those available by operation of section 39 of the TAG Act.

58. It was therefore also the preferable decision.

Conclusions

59. On the basis of those conclusions on the two issues for determination, I find that the decision under review was the correct and preferable decision.

60. It must follow that I should affirm that decision under section 63(3) of the ADR Act. I do so. I make the orders which follow.

orders

1. The decision of NSW Trustee and Guardian is affirmed.

2. The time for filing the Application is extended to 28 September 2022.

**********

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: 06 March 2023